A  TREATISE 


ON    THE 


LAW  OF  TEESPASS 


TWOFOLD   ASPECT 


THE  WRONG  AND  THE  REMEDY. 


By    THOMAS    W.    WATERMAN, 

COUNSELLOR    AT    LAW. 


IN  TWO  VOLUMES. 


VOLUME    I. 


NEW    YORK: 
BAKER,  VOORHIS  &  CO.,  PUBLISHERS, 

6G    NASSAU    STREET. 
1875. 


T 
1875 


Entered  according  to  the  Act  of  Congress,  in  the  year  1875,  by 

THOMAS  W.  WATERMAN, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


BAKER  &  GODWIN,  PRINTERS, 
^  No.  25  Parli  Row,  New  Yorli. 


PREFACE 


The  accumulation  of  legal  decisions  has  naturally  led  to  the 
multiplication  of  treatises  on  special  subjects  of  the  law,  until  the 
treatment  in  separate  works  of  at  least  the  more  prominent  topics 
has  gradually  come,  to  be  regarded  not  only  as  a  very  great  conven- 
ience, but  an  absolute  necessity. 

Among  the  invasions  of  private  right,  trespass  is  conspicuous  for 
frequency  of  occurrence  and  universality  of  application.  The  variety 
of  important  questions  arising  from  it  is  shown  by  the  numerous  re- 
ported cases  dating  from  the  earliest  period,  and  continuing  unin- 
terruptedly to  the  present  time.  The  desirability  of  the  separate 
and  independent  consideration  of  a  subject  which  is  at  the  same  time 
so  practical  and  so  extensive,  is  apparent.  But  strange  to  say,  this 
fruitful  field  has  hitherto  not  been  explored  by  any  legal  writer  ex- 
cepting in  connection  with,  and  as  a  branch  of,  some  other  general 
topic. 

The  following  pages,  designed  to  supply  a  want  which  every 
member  of  the  bar  in  active  practice  must  have  more  or  less  felt,  are 
the  resnlt  of  several  years  of  diligent  labor.  The  plan  adopted  by 
the  author  at  the  outset,  to  which  he  steadily  adhered,  necessarily 
involved  protracted  toil.  It  was,  to  eschew,  with  few  exceptions,  all 
books  of  reference  but  law  reports  ;  to  aim  at  the  careful  reading  of 
every  reported  decision  ;  and  finally,  to  adopt  his  conclusions  only 
after  a  systematic  and  patient  study  and  comparison  of  tiie  cases, 
commencing  with  the  earliest  adjudications,  and  following  the  stream 
of  judicial  exposition  down  to  the  latest.  The  extent  of  his  re- 
searches, which  however  inadequately  performed  have  been  con- 
scientiously prosecuted,  will  appear  from  the  number  of  citations. 

The  w^ork,  which  is  in  two  volumes,  consists  of  four  books  :  1st. 
Trespass  in  general;  2d.  Trespass  to  the  person ;  3d.  Trespass  in 
relation  to  personal  property  ;  and  4th.  Trespass  on  real  estate.  The 
scope  of  these  several  books,  which  as  a  whole  are  intended  to  em- 
brace every  species  of  trespass  known  to  the  law,  is  sufiiciently 
indicated  by  their  titles.     As  there  is  a  full  analysis  of  each  chapter, 


306188 


IV  PREFACE. 

and  the  text  is  divided  into  sections  which  are  interchangeably 
referred  to,  it  is  hoped  that  the  facilities  for  investigation  will  be 
found  ample.  Yolume  one  being  mainly  devoted  to  trespass  to  the 
person  and  personal  property,  and  volume  two  exclusively  to  trespass 
on  real  estate,  it  seemed  proper  and  desirable  that  each  volume,  pre- 
senting as  it  does  questions  which  in  a  certain  sense  are  wholly  dis- 
tinct, should  be  rendered  complete  in  itself,  and  each  has  accordingly 
been  supplied  with  a  full  index,  table  of  contents,  and  table  of  cases. 

With  regard  to  the  treatment  of  the  subject,  it  may  be  observed, 
that  legal  propositions  are  seldom  left  for  support  to  the  mere  cita- 
tion of  authorities,  but  are  generally  enforced  and  illustrated  by 
examples,  which  enables  the  reader  to  judge  how  far  the  decisions 
sustain  the  inferences  sought  to  be  deprived  from  them.  In  the  state- 
ment of  cases  as  much  brevity  has  been  employed  as  seemed  con- 
sistent with  a  full  understanding  of  the  points  discussed ;  a  concise 
narrative  of  facts  being  first  given,  and  then  the  substance  of  the 
decision.  Additional  examples  in  further  illustration  of  the  text, 
and  also  the  details  of  some  of  the  more  important  cases,  will  be 
found  in  the  notes.     The  citations  have  been  carefully  verified. 

The  author  submits  the  result  of  his  labors  to  the  indulgent  con- 
sideration of  his  legal  brethren. 

BiNGHAMTON,  N.  Y.,  March,  1875. 


CONTENTS  OF  VOLUME  ONE. 


PAGE. 

Preface iii 

Oases  Cited xi 


BOOK    I. 

TKESPASS   IN   GENERAL. 


OHAPTEE   I. 
definition  and  nature  of  trespass. 

1.  Trespass  defined 1 

2.  Acts  which  may  or  may  not  constitute  trespass 2 

3.  Infringement  of  right  without  specific  injury 12 

4.  Motive  or  intention 13 

5.  Liability  for  consequences  of  wrongful  act 19 

6.  Inciting  or  aiding  the  commission  of  trespass 22 

7.  Ratification  and  adoption  of  wrongful  act 27 

8.  Indemnity  of  innocent  wrong-doer 28 


CHAPTER   II. 

trespass  as  a  remedy. 

1.  When  the  action  will  lie   31 

3.  Action  for  wrong  committed  by  married  woman 38 

3.  Redress  for  the  wrongful  acts  of  minors 41 

4.  Liability  of  master  for  wrongful  acts  of  servant 42 

5.  Liability  of  principal  for  wrongful  acts  of  agent 50 

6.  Responsibility  of  sheiiif  for  the  wrongful  acts  of  his  deputy 51 

7.  Action  against  corporations , 52 

8.  Liability  of  partners 54 

9.  Action  by  and  against  executors 54 

10.  Liability  of  persons  whose  authority  is  derived  from  statute 55 


Tl  CONTENTS. 


PAGE. 

11.  Action  in  the  case  of  joint  wrong-doers 61 

13.  Settlement  of  claim  for  clamnges 68 

13.  "When  ])arty  confined  to  remedy  given  by  statute ,,.....  75 

14.  Declaration 76 

15.  Plea 81 

16.  Replication 87 

17.  New  assignment 88 

18.  Right  to  open  and  close 90 

19.  Evidence 90 

20.  Damages 101 

21.  Costs 109 

23.  Verdict 110 

23.  Amendment  after  verdict ...  113 

24.  Judgment 114 

25.  Writ  of  error 115 

26.  New  trial 116 


BOOK   11. 

TRESPASS    TO    THE    PERSON. 


CHAPTER    I. 

ASSAULT    AND    BATTERY. 

1.  Meaning  of  assault 131 

2.  Battery  defined 134 

3.  "When  accident  will  excuse 126 

4.  Self-defense 138 

5.  Defense  of  property 135 

6.  Retaking  property 146 

7.  Right  of  owner  or  occupier  of  premises  to  eject  jiersons  therefrom 151 

8.  Right  of  innkeeper  to  exclude  or  expel  persons 154 

9.  Expulsion  from  religious  meeting 158 

10.  Expulsion  from  place  of  public  amusement 160 

11.  Forcible  removal  from  public  conveyance 163 

13.  Right  of  access  to  railway  depot 177 

13.  Seduction  of  daughter  with  violence 180 

14.  Chastisement  of  pupil  by  teacher 183 

15.  Chastisement  of  servant  by  master 186 

16.  Corporal  punishment  by  master  of  vessel 187 

17.  Abuse  by  keeper  of  almshouse 187 

18.  Personal  violence  by  husband  upon  wife 189 

19.  Injury  from  reckless  driving 190 

20.  Resisting  arrest 192 

21.  Aiding  or  encouraging  assault 193 

23.  Place  of  trial 195 

23.  Holding  to  bail . .    200 

24.  Parties  to  action 200 

25.  Declaration 203 

26.  Plea 306 


CONTENTS.  Vll 


PAGE. 

27.  Replication 216 

28.  Right  to  begin 219 

29.  Burden  of  proof , 220 

30.  The  proof  must  correspond  with  the  pleadings 220 

31    Proof  of  time 224 

32.  Evidence  as  to  possession 224 

33.  Proof  of  malice 228 

34.  Admissions  and  declarations  .• 230 

35.  Evidence  of  provocation 235 

36.  Proof  of  mitigating  circumstances 240 

37.  Evidence  as  to  character 243 

38.  Proof  of  consequences  of  wrongful  act 246 

39.  Evidence  as  to  pecuniary  condition  of  party 247 

40.  Damages  in  general 248 

41.  Damages  from  wounded  feeling 249 

42.  Malicious  intent  as  affecting  the  damages _ 251 

43.  Damages  for  assault  upon  child  or  servant 255 

44.  Damages  after  conviction  for  public  offense 257 

45.  Damages  accruing  after  commencement  of  action 258 

46.  Inadequate  or  excessive  damages '.  259 

47.  Costs 260 

48.  Verdict J . . .  261 


CHAPTER  II. 

FALSE    IMPRISONMENT. 

1.  False  imprisonment  defined 264 

2.  Arrest  by  private  person 267 

3.  Private  person  causing  arrest 271 

4.  Arrest  and  detention  under  military  order 288 

5.  Arrest  by  officer  without  warrant 290 

6.  Requisites  of  warrant  of  arrest 297 

7.  Duty  of  officer  to  communicate  substance  of  warrant 301 

8.  Liability  of  officer  in  the  execution  of  process 302 

9.  Private  person  aiding  officer  in  arrest 310 

10.  What  constitutes  an  arrest 312 

11.  Detention  bv  oflicer  of  party  arrested 314 

12.  OfBcer's  return 317 

13.  Responsibility  of  magistrates 330 

14.  Waiver  of  right  of  action 326 

15.  Nature  of  the  action 328 

16.  Declaration 339 

17.  Plea  justifying  arrest  without  warrant 330 

18.  Plea  justifying  arrest  under  process • 334 

19.  Replication  to  plea  alleging  breach  of  the  peace 337 

20.  Replication  to  plea  justifying  under  process 337 

21.  Evidence 341 

22.  Damages 350 


Viii  CONTENTS. 

BOOK  III. 
TRESPASS   IN   RELATION   TO   PERSONAL   PROPERTY. 


CHAPTER   I. 

TITLE  TO  PERSONAL  PROPERTY. 

PAGE. 

1.  Property  in  wild  animals 355 

2.  Property  in  goods  where  their  character  has  been  changed 358 

3.  Property  in  goods  by  accession 363 

4.  Conlusion  or  intermingling  of  goods 363 

5.  "When  owner  of  goods  estopped  from  asserting  title  to  them 366 

6.  When  property  in  goods  vests  in  trespasser 368 

7.  Properly  made  chattels  by  agreement 368 

8.  General  rule  as  to  fixtures 369 

CHAPTER  II. 

WRONGFUL    TAKING    OF    PERSONAL     PROPERTY    BY    PRIVATE 

PERSON. 

1.  What  constitutes 381 

2.  Creditor  obtaining  possession  of  goods  by  unlawful  means 388 

3.  Party  directing  illegal  seizure  or  sale  by  officer 390 

4.  Right  of  owner  of  goods  to  retake  them 401 

5.  Return  of  property  by  wrong-doer 406 

CHAPTER   III. 

THE  TAKING  OF  PERSONAL  PROPERTY  BY  OFFICER. 

1.  Goods  that  may  or  may  not  be  taken 409 

2.  What  essential  to  constitute  an  attachment 417 

3.  When  personal  property  bound  by  levy 420 

4.  Protection  afforded  to  officer  by  process 428 

5.  Duty  and  liability  of  officer  in  seizing  goods 443 

6.  Power  and  duty  of  person  specially  authorized  to  act  officially 487 

7.  Validity  of  acts  of  officer  de  facto 488 

8.  Liability  of  sheriflf  for  illegal  acts  of  deputy 489 

9.  Liability  of  assessors  of  taxes 492 

10.  Liability  of  collector  of  taxes 498 

CHAPTER    IV. 

WHO    ]MAY    MAINTAIN    THE    ACTION. 

1.  General  rule 507 

2.  In  case  of  goods  taken  from  officer 528 

3.  Where  goods  are  taken  from  a  servant 530 

4.  In  the  case  of  a  corporation 531 

5.  Where  the  goods  belonged  to  a  person  deceased 532 


CONTENTS.  ix 


PAGE. 

6.  Where  property  is  mortgaged 534 

7.  Where  the  owner  has  parted  with  his  right  of  possession 547 

8.  In  case  of  bailment 548, 

9.  Where  there  has  been  a  conditional  sale 554 

10.  In  case  of  agency 557 

11.  Tenants  in  common 561 

12.  Where  possession  of  goods  is  obtained  by  fraud 567 


CHAPTER   V. 

EEMEDY  FOR  THE  WRONGFUL  TAKING  OR  INJURY  OF  PERSONAL., 

PROPERTY. 

1.  Ground  of  action 585 

2.  Declaration 588 

3.  Grounds  of  defense 595 

4.  Plea 603 

5.  Replication , 612 

6.  Evidence  of  possession 614 

7.  Proof  of  taking 615 

8.  Evidence  as  to  value 617 

9.  Proof  of  time 617 

10.  Attendant  circumstances 617 

11.  Intention 618 

12.  Presumptions 620 

1 3.  Evidence  of  justification 624 

14.  Evidence  in  mitigation  of  damages 632 

15.  Objections  to  evidence,  when  to  be  made 635 

16.  Damages  in  general ;• 636 

17.  Exemplary  damages ,~ 647 


CASES  CITED  IN  YOLUME  OXE. 


(The  references  are  to  the  pages.) 


Aaron  v.  Alexander.  275,  316,  346. 

Abbe  V.  Clark,  79,  80. 

Abbott  V.  Booth,  298. 

Abbott  V.  Kimball,  392,  473,  475,  476. 

Acker  v.  Campbell,  568. 

Ackworth  v.  Kempe,  439,  447,  490,  626. 

Adames  v.  Field,  411. 

Adams  V.  Adams,  465. 

Adams  v,  Andrews,  161. 

Adams  v.  Barry,  79. 

Adams  v.  Brougbton,  602. 

Adams  v.  Freeman,  23,  28,  278. 

Adams  v.  Hall,  68. 

Adams  v.  Hemmeuway,  31,  35. 

Adams  v.  Morgan,  81. 

Adams  v.  Rivers,  2. 

Adams  V.  Waggoner,  125. 

Adamson  v.  Jarvis,  29. 

Addison  v.  Overend,  79. 

Adkins  v.  Brewer,  60,  434. 

Adwin  V.  N.  Y.  &c.  R.  R.  Co.,  167. 

Agry  V.  Young.  492. 

Akeriey  v.  Haines,  256. 

Akley  V.  Dale,  341. 

Albany  &  West  Stockbridge  R.  R.  Co. 

V.  Cady,  109. 
Alderson  v.  Waist  ell,  128, 135. 
Alexander  v.  Hoyt.  57,  498. 
Alfred  V.  Bray,  393. 
Algood  V.  Hutchins,  508. 
Allaire  v.  Ouland,  29. 
Allen  V.  Archer,  92. 
Allen  V.  Colby,  483.  484. 
Allen  V.  Craig,  61,  105,  117. 
Allen  V.  Crary,  462. 
Allen  V.  Crofoot,  408,  478,  479. 
Allen  V.  Demiug,  584. 
Allen  V.  Ford,  586. 
Allen  V.  Gray,  56,59,  342. 
Allen  V.  Greenlee,  274. 
Allen  V.  Martin,  346. 
Allen  V.  Parkhurst,  111,  335. 
Allen  V.  Wright,  270,  280,  291. 
Allison  V.  Chandler,  102. 
Alfred  V.  Bray,  642. 
Alton  &  Chicago  R.  R.  Co.   v.   Dalby, 

162. 


Alvord  Carriage  Mauf.   Co.  v.  Gleason, 

375. 
Amer  v.  Longstreth,  104. 
Amick  V.  O'Hara,  14. 
Anderson  v.  Hill,  38,  202,  203. 
Anderson  v.  Nicholas,  568. 
Andre  v.  Johnson,  147. 
Andrews  v.  Chase,  85. 
Andrews  v.  Marris,  8. 
Andrews  v.  Stone,  206. 
Angell  V.  Keith,  447. 
Anthony  v.  Gilbert,  647. 
Anthony  v.  Haney,  370. 
Arden  v.  Patterson,  38. 
Armory  v.  Delamirie,  507. 
Arnold  v.  Ringold,  190. 
Arnold  v.  Steeves,  302. 
Arrowsmith  v.  Le  Mesurier,  313. 
Arthur  v.  Flanders,  597,  598. 
Ash  V.  Dawnay,  464. 
Ash  V.  Putnam,  367,  570. 
Ash  V.  Savage,  544. 
Ashbv  V.  White,  12. 
Ashley  y.  Minnett,  620. 
Ashmore  v.  Hardy,  608. 
Ashmun  v.  Williams,  378. 
Atkinson  v.  Matteson,  222. 
Atkinson  v.  Warne,  285,  348. 
Attack  V.  Bramwell,  382. 
Atwood  V.  Fricot,  101. 
Aulger  V.  Smith,  228. 
Austin  V,  Norris,  83,  84, 
Austin  V.  Sawyer,  375. 
Austin  V.  Tilden.  568. 
Averett  v.  Thompson,  438. 
Averill  v.  Smith,  502. 
Averill  v.  Williams,  393. 
Avery  v.  Bulklv,  195.   . 
Avery  v.  Rav,  240,  246,  249. 
Aveson  v.  Kinnaird.  231. 
Ayer  v.  Ashmead,  69,  70,  107. 
Ayer  v.  Austin,  90. 
Ayres  v.  Kelly,  217. 

Babbott  V.  Thomas,  190 
Babcock  v.  Lamb,  84. 
Bachurst  v.  Ciinkard,  422. 


xu 


TABLE  OF  CASES  CITED. 


Backus  V.  Dudley,  397. 

Badger  v.  Pliinncy,  41,  403. 

Badkin  v.  Powell,  34,  433. 

Bagwell  V.  Jamison,  33. 

Bailey  v.  Burton,  544. 

Bailey  v.  Colby,  556,  557. 

Bailey  v.  Hall,  475. 

Bailey  v.  Kay,  315. 

Bailey  v.  Wiggins,  3.  398. 

Bainbridge  v.  Lax,  87. 

Baird  v.  Householder,  371. 

Baker  v.  Baker,  588. 

Baker  v.  Freeman,  497,  500, 

Baker  v.  Jewell,  566. 

Baker  v.  Loyd,  535. 

Baker  v.  Wriglit,  35. 

Baker  v.  Young,  38. 

Balch  V.  Patten,  586. 

Baldwin  v.  Breed,  378. 

Baldwin  v.  Calkins,  78. 

Baldwin  v.  Hayden,  139,  137. 

Baldwin  v.  Western  R.  R.  79. 

Ball  V.  Bullard,  301. 

Ballard  v.  Bond,  158. 

Balme  v.  Hutton,  567. 

Baltimore  &c.  R.  R.  Co.  v.  Blocher,  351, 

636. 
Baltimore  &c.  R.  R.  Co.  v.  Breinig,  358. 
Bangor  &c.  R.  R.  Co.  v.  Smith,  11. 
Bangs  V.  Snow,  494. 
Bank's  case,  134. 
Barber  v.  Barnes,  31. 
Barber  v.  Chapin,  637. 
Barber  v.  Rollinson,  377,  393. 
Barkeloo  v.  Randall,  59. 
Barker  V.  Binninger,  430. 
Barker  v.  Chase,  507,  539. 
Barker  v.  Coffin,  174. 
Barker  v.  Midland  R.  R.  Co.  178. 
Barker  v.  Stetson,  393. 
Barnes  v.  Barber,  439. 
Barnes  v.  Hurd,  33. 
Barnes  v.  Martin,  147,  347,  351,  401. 
Baraes  v.  Wood,  144. 
Barney  v.  Brown,  574,  578. 
Barrett  v.  Copeland,  319. 
Barrett  v.  Crane,  56 
Barrett  v.  Pritchard,  534. 
Barrett  v.  Warren,  381,  385,  569. 
Barrett  v.  White,  444,  465,  475,  480. 
Barron  v.  Cobleigh,  365,  445,  481. 
Barron  v  Mason,  141. 
Barrow  v.  Page,  9. 
Barry  v.  Bennett,  639. 
Bartlett  v.  Churchill,  317. 
Bartlett  v.  Kinsley,  19. 
Bartram  v.  Stone,  333,  233,  336. 
Basely  v.  Clarkson,  15. 
Bass  V.  Bean,  1 90. 
Bass  V.  Pierce,  553,  553. 


Basset  v.  Porter,  344. 

Basset  v.  Salisbury  Manf.  Co.  13. 

Batchelder  v.  Carter,  580. 

Batchelder  v.  Currier,  56,  440,  635. 

Batchelder  v.  Kelly,  50. 

Batchelder  v.  Whitcher,  35,  335,  497. 

Batchellor  v.  Schuyler,  448. 

Bateman  v.  Bluck,  598. 

Bates  V.  Conkling,  97. 

Bates  V.  Hazeltine,  56.  503. 

Bates  V.  Quattlebom,  600. 

Bauer  v.  Clay,  365,  353. 

Bayley  v.  Bates,  448. 

Baynes  v.  Brewster,  385,  333. 

Beach  v.  Bay  State  Co.  196. 

Beach  v.  Hancock,  133,  359. 

Beach  v.    Schmultz,  865. 

Beal  agst.  Finch,  95,  114. 

Beals  V.  Guernsey,  575. 

Bean  v.  Hubbard,  446,  477. 

Beardsley  v.  Sherman,  374. 

Bebee  v.  Steel,  335. 

Beckwith  v.  Boyce,  374. 

Beckwith  v.  Philby,  391. 

Beebe  v.  Ayrcs,  173. 

Beecher  v.  Derby  Bridge  and  Ferry  Co.^ 

103. 
Beecher  v.  Parmele,  149,  401. 
Beekmau  v.  Lansing,  430. 
Beers  v.  St.  John,  378,  379. 
Belden  v.  Grannis,  589. 
Belk  V.  Broadbent,  303,  338,  336,  433, 

607. 
Bell  V.  Hausley,  135. 
Bell  V.  Miller,  33. 
Bell  V.  Monahan,  513. 
Bell  V.  Raymond,  337. 
Bell  V.  Walsh,  67. 
Bellows  V.  Shannon,  193,  303. 
Belmont  v.  Lane,  636. 
Benedict  v.  Benedict,  378. 
Bennet  v.  Bayes,  386. 
Bennet  v.  Fuller,  639. 
Bennett  v.  Hood,  599. 
Bennett  v.  Olcott,  183. 
Bennus  v.  Guyldley,  330. 
Benson  v.  Frederick,  250. 
Benson  v.  Swift,  306. 
Bentley  v.  Goodwin,  573. 
Berriman  v.  Gilbert,  39. 
Berry  v.  Borden,  318. 
Berry  v.  Fletcher,  105. 
Bertie  v.  Pickering,  588. 
Betts  V.  Lee,  363,  368. 
Bevin  v.  Linguard,  363. 
Bigelow  V.  Huntley,  555. 
Bigelow  V.  Stearns,  56,  115,  331,  324. 
Billings  V.  Russell,  115,  390. 
Bingham  v.  Garnhuult,  238. 
Birchard  v.  Booth,  238. 


TABLE  OF  CASES  CITED. 


xm 


Bird  V.  Clark,  381,  513. 

Bird  V.  Holbrook,  144. 

Bird  V.  Jones,  265,  366. 

Bird  V.  Lyman,  195. 

Bird  V.  Randall,  63. 

Birdseye  v.  Ray,  421. 

Birge  v.  Gardner,  146. 

Bishop  V.  Baker,  595. 

Bishop  V.  Doty,  563. 

Bishop  V.  Ely,  66. 

Bishop  of  London's  Ca«e,  355. 

Bishop  V.  Viscountess  Montague,  396. 

Bissell  V.  Gold,  275. 

Bixby  V.  Franklin  Ins.  Co.,  552. 

Blackburn  v.  Bowman,  8. 

Blackburn  v.  Minter,  241. 

Blackley  v.  Sheldon,  112. 

Blackstock  v.  The  N.  Y.  &  Erie  R.  R. 

Co.,  43. 
Blades  v.  Higgs,  137. 
Blake  v.  B^irnard,  123. 
Blake  v.  Damon,  229. 
Blake  v.  Hatch,  418,  516. 
Blake  v.  Johnson,  504. 
Blake  v.  White,  621. 
Blanchard  y.  Goss,  116,  278,  504,  533. 
Blann  v.  Crocheron,  107. 
Blatchley  v.  Moser,  56. 
Blevins  v.  Baker,  458. 
Blin  V.  Campbell,  34. 
Bliven  v.  Hudson  River  R.  R.  Co.,  386. 
Blood  V.  Adams,  208. 
Blood  V.  Sayre,  56,  60. 
Bloomer  v.  State,  265. 
BIoss  V.  Plymale,  74,  100. 
Blossom  V.  Barrett,  205. 
Blunt  V.  Beaumont,  209. 
Blunt  V.  McCormick,  103. 
Blyth  V.  Topham,  144. 
Blythe  v.  Tompkins,  105. 
Boafrd  of  Trustees  v.  Schroeder,  386. 
Boerum  v.  Taylor,  592. 
Boice  V.  The  Hudson  River  R.  R.  Co., 

174. 
Boise  V.  Knox,  513,  536. 
Boles  V.  Pinkerton,  211. 
Boling  V.  Wright,  241. 
Bond  V.  Padelford,  442. 
Bond  V.  Ward,  410,  456. 
Bond  V.  Wilder,  465,  468. 
Bonesteel  v.  Bonesteel,  351,  353. 
Bonesteel  v.  Flack,  580. 
Bonnell  v.  Dunn,  446. 
Bonomi  v.  Backhouse,  9. 
Booth  V.  Cooper,  328. 
Boston  &c.  R.  R.  v.  Gilmore,  414. 
Boston  V.  Neat,  508. 
Bowen  v.  Parry,  216. 
Bowles  V.  Senior,  622. 
Bowman  v.  Noyes,  108. 


Boyce  v.  Bayliflfe,  312,  353. 

Boyd  V.  Brown,  573,  646. 

Bcyleston  v.  Kerr,  2,  282. 

Boynton  v.  Turner,  560. 

Boynton  v.  Willard,  89,  514,  630. 

Bracegirdle  v.  Orford,  343. 

Brackett  v.  RuUard,  483,  535,  544. 

Brackett  v.  Norton,  92. 

Brackett  v.  Vining,  465. 

Bradish  v.  Schenck,  79,  607. 

Bradlaugh  v.  Edwards,  105. 

Bradley  v.  Boynton,  566. 

Bradley  v.  Davis,  548. 

Bradley  v.  Powers,  83. 

Brady  v.  Haines,  575. 

Bragg  V.  Wetzel,  89. 

Brainard  v.  Head,  433. 

Brainard  v.  Stilphin,  435. 

Branscomb  v.  Bridges,  585. 

Breck  v.  Blanchard,  286. 

Breidenthal  v.  McKenna,  97. 

Brennan  v.  Carpenter,  34. 

Brewer  v.  Dew,  509. 

Brewer  v.  Sparrow,  585. 

Brewer  v.  Temple,  203. 

Brice  v.  Vanderheyden,  554. 

Bridge  v.  Eggleston,  621. 

Bridge  v.  G.  Junction  R.R.  Co., 597,598 

Bridges  v.  Blanchard,  14. 

Bridges  v.  Purcell,  161. 

Bridgett  v.  Coyney,  266. 

Brierlv  v.  Kendall,  545,  641. 

Briggs  V.  Gleason,  481.  482,  645. 

Briggs  V.  Mason,  83,  445,  612. 

Briggs  V.  Oaks,  550. 

Briggs  V.  Wardwell,  57,  58,  325. 

Briggs  V.  Whipple,  319,  501,  611. 

Brightmau  v.  Grinnell,  465. 

Briscoe  v.  McElween,  637. 

Britton  v.  South  Wales  R.  R.  Co.,  118. 

Britton  v.  Turner,  561. 

Brizsee  v,  Maybee,  104,  642. 

Brock  V.  Smith,  363. 

Brock  V.  Stimson,  294. 

Brokaw  v.  N.  J.  R.  R.  Co.,  202. 

Bromley  v.  Ilutchins,  296,  297, 

Brooks  V.  Adams,  321. 

Brooks  V.  Ashburn,  63. 

Brooks  V.  Galster,  374. 

Brooks  V.  Goss,  537. 

Brooks  V.  Olmstead,  15,  387,  407. 

Broome  v.  Wooton,  600. 

Broughton  v.  Whallon,  387. 

Brown  v.  Allen,  62,  105,  263. 

Brown  v.  Artcher,  608. 

Brown  v.  Burrus,  111. 

Brown  v.  Cambridge,  74. 

Brown  v.  Chadsey,  270,  282,  328,  829, 

331. 
Brown  v.  Chapman,  275,  276. 383,  393. 


XIV 


TABLE    OF    CASES   CITED. 


Brown  v.  Cook,  535. 

Brown  v.  Cummings,  103, 116,  246. 

Brown  v.  Davis,  628. 

Brown  v.  Getchell,  308. 

Brown  v.  Gordon,  244. 

Brown  v.  Hedges,  79. 

Brown  v.  Howard,  96,  97, 187. 

Brown  v.  Jones,  341. 

Brown  v.  Kendall,  3,  127. 

Brown  v.  Marsh,  69,  74. 

Brown  v.  ^lay,  224. 

Brown  v.  Neal,  7. 

Brown  v.  X.  Y.  Cent.  R.  R.  Co.,  28<3. 

Brown  v.  Perkins,  67. 

Brown  v.  Purviance,  50. 

Brown  v.  Scott,  521. 

Brown  v.  Thomas,  513. 

Brown  v.  "Wait,  446. 

Brown  v.  Ware,  507. 

Brown  y.  Wenlworth,  565. 

Brown  v.  Wheeler,  222,  225,  262. 

Brown  v.  Wooton,  62,  63,  74,  108. 

Browne  v.  Dawson,  144,  150. 

Brow^nell  v.  Carnley,  549,  553. 

Browuell  v.  Mauch'ester,  519,  530,  549. 

Browning  v.  Hanford,  443,  627. 

Browning  v.  Skillman,  519,  593. 

Brubaker  V.  Paul,  130,  211. 

Bruce  v.  Priest,  244,  245. 

Bruce  v.  Thompson,  451. 

Bruch  V.  Carter,  17,  3S3. 

Bruhl  V.  Parker,  390,  517. 

Brunswick  v.  Slowman,  248. 

Brush  T.  Blanchard,  508. 

Brush  V.  Scribner,  92. 

Brushaber  v.  Stegemann,  265,  343. 

Bryan  v.  Bates,  209. 

Biyant  y.  Clutton,  288. 

Bryant  v.  Ware,  364. 

Buck  y.  Colbath,  615. 

Buckingham  v.  Billings,  411,  446. 

Buckland  y.  Johnson,  601. 

Buckley  y.  Gross,  291. 

Bucklin  v.  Beals,  649. 

Bucknam  v.  Brett,  565. 

Bucknam  v.  Nash,  639,  643. 

Buddington  v.  Shearer,  116. 

Buffington  v.  Gerrish,  402. 

Bulkeley  v.  Keteltas,  347. 

Bulkly  y.  Dolbeare,  512,  513. 

Bull  y.  Colton,  135,  190. 

Bullock  y.  Bal:)Cock,  41. 

Burchard  y.  Booth,  258. 

Burdett  v.  Abbott,  345. 

Burdett  v.  Coleman,  345. 

Burdick  v.  Woriall,  19,  205,  603,  604. 

Burdict  y.  Murray,  548. 

Burgess  y.  Freelove,  205,  222. 

Bumham  y.  Holt,  41. 

Burnham  y.  Spooner,  287. 


Burnham  y.  Steyens,  320. 

Bums  y.  Erben,  264,  270,  277,  281,  291^ 

329,  348. 
Burr  y.  Woodrow,  617. 
Burris  y.  Johnson,  401. 
Burrows  y.  Stoddard,  519,  581,  636. 
Bursley  v.  Hamilton,  445. 
Burt  y.  Powis,  227. 
Burton  v.  McClellan,  3,  19. 
Burton  y,  Scherpf,  160. 
Burton  y.  Sweaney,  607,  610. 
Burton  y.  Thompson,  117. 
Burton  y.  Wilkinson,  387,  488. 
Bush  y.  Parker,  211,  213. 
Bush  y.  Steinman,  47. 
Bushel  y.  Miller,  10. 
Butcher  y.  Butcher.  144. 
Butler  V.  Collins,  570. 
Butler  y.  Mercei-,  257. 
Butler  y.  K  Y.  &  Erie  R.  R.  Co.,  37. 
Butler  y.  Washburn,  296,  305,  306,  313^ 

315. 
Butt  y.  Gould.  241. 
Butterfield  y.  Baker,  523. 
Butterworth  y.  Soper.  605. 
Byrnes  y.  Brewster,  268. 

Cabell  y.  Vaughan,  79. 

Cable  y.  Cooper,  308,  431. 

Cadwell  y.  Fariell,  12. 

Cady  y.  Barlow,  258. 

Cady  y.  Fairchild,  117. 

Calder  &  Hebble  Nay.  Co.  y.  Pilling, 

293. 
Caldw^ell  y.  Arnold,  406. 
Caldwell  v.  Julien,  77. 
Caldwell  y.  Murphy,  103,  230,  231. 
Caldwell  y.  Sacra,  44. 
Callaway  &c.  Co.  v.  Clark,  647. 
Calleuder  v.  Marsh,  76. 
Cameron  y.  Lightfoot,  802, 
Camp  y.  Chamberlain,  420. 
Camp  y.  Moseley,  450. 
Campbell  y.  Pheips,  51,  490,  491,  492. 
Campbell  v.  Stakes,  586,  587,  604. 
Campbell  y.  Woodworth,  646. 
Canal  Co.  v.  Kiutr,  12. 
Candee  y.  Lord,  626. 
Cane  y.  Watson,  62. 
Canfield  y.  Gaylord,  109. 
Canning  y.  Willi^imstown,  249. 
Cannon  y.  Burris,  36. 
Cannon  v.  Kinney,  513. 
Cant  y.  Parsons,  266,  341. 
Capen  y.  Peckham,  375. 
Carle  y.  Delesderuier,  308. 
Carlisle  y.  Weston,  591. 
Cararick  y.  Myers,  446,  467,  545. 
Carpenter  y.  Crane,  218. 
Carpenter  y.  Cummings,  445. 


TABLE    OF    CASES    CITED. 


XV 


Carpenter  v.  Parker,  350. 

Carpenter  v.  Pierce,  110. 

Carratt  v.  ]Morley,  393. 

Carrier  v.  Esbaugh,  465. 

Carson  v.  Prater,  507. 

Carter  v.  Johnson,  608. 

Carter  v.  Jones,  220. 

Carter  v.  Simpson,  399,  516. 

Case  V.  Mark,  34. 

Case  of  The  Marshalsea,  429. 

Case  V.  Shepherd,  58. 

Casher  v.  Peterson,  528. 

Cassedy  v.  Hunt,  535. 

Cassin  v.  Delaney,  40,  89,  279. 

Castle  V.  Duryea,  127. 

Castner  v.  Sliker,  235. 

Cate  V.  Gate,  10,  5G. 

Catlin  V.  The  Springfield  Ins.  Co.,  162. 

Causee  v.  Anders,  151,  251. 

Cave  Y.  Cave,  374. 

Caverley  v.  Jones,  94. 

Cavis  V.  Robertson,  500. 

Chaddock  v.  Wilbraham,  326. 

Chaflfee  v.  Sherman,  519,  520. 

Chamberlain  v.  Smith,  404. 

Chamberlih  v.  Greenfield,  76. 

Chamberlin  v.  Murphy,  72,  73, 100. 

Chamljers  v.  Porter,  131,  235. 

Chandler  v.  Thurston,  151. 

Chandler  v.  Walker,  101. 

Chanet  v.  Parker,  63. 

Chapman  v.  Dyett,  391. 

Chapman  v.  Hatt,  75. 

Chapman  v.  Snow,  200. 

Chapman  v.  Wilber,  196. 

Chase  v.  Eikins,  580. 

Chase  v.  Hathaway,  78. 

Chase  v.  Loveiing,  107, 108. 

Chase  v.  Sparhawk,  497. 

Chatfield  v.  Wilson,  141. 

Cheasley  v.  Barnes,  89,  224,  475. 

Cheney  v.  The  B.  &  M.  R  R.  Co.,  167. 

Cheney  v.  Holgate,  263. 

Chicago  &c.  R.  R.  Co.  v.  Flagg,  251. 

Chicago  &c.  R.  R.  Co.  v.  McCarthy,  162. 

Child  V.  Allen,  403. 

Child  V.  Sands,  79. 

Chilton  V.  Lond.  &  Croyd.  Rail.  Co.,  293. 

Chinn  v.  Morris,  281,  314. 

Chivers  v.  Savage,  392. 

Christie  v.  Sawyer,  38. 

Christopher  v.  Covington,  585. 

Ciiristopherson  v.  Bare,  121.  207. 

Church  v.  De  Wolf,  94. 

Church  V.  Hubbard,  92.- 

Church  V.  Mansfield,  45,  49. 

Churchill  v.  Churchill,  428,  476. 

Churcliill  V.  Rosebeck,  191. 

Churchill  v.  Siggers,  286. 

Churchill  v.  Watson,  104,  619. 


Churchward  v.  Studdy,  357. 

City  Bank  v.  Bangs.  190. 

Claflin  V.  Carpenter,  160. 

Clark  V.  Axford,  504. 

Clark  V.  Bales,  23,  105. 

Clark  V.  Bragdon,  299,  500. 

Clark  V.  Carlton,  513,  547,  551. 

Clark  V.  Clement,  75. 

Clark  V.  Foot,  9. 

Clark  V.  Frv,  24,  67. 

Clark  V.  Gibson,  584. 

Clark  V.  Hallock,  406,  498,  506. 

Clark  V.  Harrington,  85,  598. 

Clark  V.  Langworthy,  76. 

Clark  V.  Lathroj),  336. 

Clark  V.  May,  57. 

Clark  V.  Newsam,  263,  354. 

Clark  V.  Norris,  39. 

Clark  V.  Norton,  495. 

Clark  V.  Skinner,  381. 

Clark  V.  Washburn,  641. 

Clay  V.  Sandefer,  395. 

Clay  V.  Sweet,  34. 

Clees  V.  Sikes,  34. 

Cleveland   &c.   R.   R.   Co.  v.   Bartram, 

'105,  248. 
Cleveland  &c.  R.  R.  Co.  v.  Stackhouse, 

34. 
Clifton  V.  Grayson,  271. 
Cloutman  v.  Pike,  429,  500. 
Clow  agst.  Wright,  289. 
Cluley  V.  Lockhart,  518. 
Coats  V.  Darby,  25,  294. 
Cobb  V.  Buswell,  427,  428. 
Cobbett  V.  Grey,  317. 
Cochran  v.  Ammon,  247. 
Cocke  V.  Jeunor,  69. 
Cockroft  V.  Smith,  131. 
Codman  v.  Freeman,  513,  535. 
Codrington  v.  Lloyd,  391. 
Cody  V.  Adams,  272. 
Coffin  v.  Coflin,  76,  206,  248. 
Coffin  V.  Field,  75,466,585. 
Cogljurn  V.  S  pence,  440. 
Cogdell  V.  Yett,  125,  223. 
Cohen  v.  Huskisson,  285. 
Colby  V.  Jackson,  1 7,  268,  269,  343. 
Golden  v.  Eldred,  75. 
Cole  V.  Fisher,  21. 
Cole  V.  Green,  13. 
Cole  V.  Hindson,  300. 
Cole  V.  RadcUfT,  271. 
Cole  V.  Turner,  125. 
Coleman  v.  N.  Y.  &  New  Haven  R.  R. 

Go  ,  166,  170. 
Coleman  v.  State,  237. 
Colgrave  v.  Dias  Santos,  374. 
Collamer  v.  Drury,  503. 
Collamer  v.  Elmore,  272. 
Collett  V.  Flinn,  609. 


XVI 


TABLE    OF    CASES    CITED. 


Collett  y.  Keith,  607. 

Collier  v.  Moulton,  225. 

Collins  V.  Ferris,  23,  60. 

Collins  V.  Perkins,  640. 

Collins  V.  Prentice,  115. 

Collins  V.  Rcnison,  143. 

Collins  V.  Todd,  235,  238. 

Collins  V.  Wagcfoner,  394. 

Colt  V.  Eves,  78,  93. 

Colter  V  Lower,  265,  329. 

Coltraine  v.  McCain,  391. 

Cohvill  V.  Reeves,  455,  554. 

Com.  V.  Bliss,  258. 

Com.  V.  Clark,  129. 

Com.  V.  Cornish,  15. 

Com.  V.  Dougherty,  160. 

Com.  V.  Elliott,  258. 

Com.  V.  Field,  302. 

Ccmi.  V.  Ford,  131. 

Com.  V.  Foster,  297. 

Com.  V.  Henry,  61. 

Com.  V.  Hurley,  194. 

Com.  V.  Kennard,  139,  308,  399. 

Com.  V.  Lakeman,  151. 

Com.  V.  Powers,  167,  170,  178. 

Com.  V.  Presby,  151. 

Com.  V.  RMudall,  151,185. 

Com.  V.  Rigney,  151. 

Com.  V.  Ruggles,  121,  124. 

Com.  V.  Sessions,  248. 

Com.  V.  Snelling,  17. 

Com.  V.  Thompson,  189. 

Com.  V.  Tobin,  2&2. 

Com.  V.  York,  253. 

Comfort  V.  Fulton,  323. 

Compere  v.  Hicks,  111. 

Conard  v.  Pacific  Ins.  Co.,  34. 

Conderman  v.  Smith,  542. 

Conkey  v.  Amis,  399. 

Conklin  v.  Thompson,  587. 

Connah  v.  Hale,  381,  462. 

Conner  v.  Coffin,  374,  376,  377. 

Conrad  v  The  Village  of  Ithaca,  52. 

Consequa  v.  Willings,  92. 

Cook  v.  Darby,  32. 

Cook  V.  Ellis,  257. 

Cook  V.  Garza,  91. 

Cook  V.  Hopper,  393. 

Cook  V.  Miller,  608,  626. 

Coolidge  V.  Choate,  413,  637. 

Coon  V.  Brook,  190. 

Cooper  V.  Adams,  300. 

Cooper  V.  Chitty,  399,  507. 

Cooper  V.  Harding,  304,  392. 

Cooper  V.  Maupin.  110. 

Cooper  T.  McJunkin,  183. 

Copley  V.  Rose,  421. 

Corey  v.  The  People,  135. 

Corfield  v.  Coryell,  554. 

Cornell  v.  Barnes,  432,  433. 


Corning  v.  Corning,  238. 

Cornish  v.  Marks,  39. 

Corwin  v.  Walton,  233,  257. 

Cotsworth  V.  Betison,  404. 

Cottingham  v.  The  State,  81. 

Coty  v.  Barnes,  538. 

Countess  of  Rutland's  Case,  303. 

Coupal  V.  Ward,  265. 

Courser  v.  Powers,  320. 

Courtov  V.  Dozier,  314. 

Coventry  v.  Barton,  28,  29. 

Covin  V.  Hill,  368. 

Coward  v.  Baddelley,  125. 

Cowell  V.  Lane,  525. 

Cowels  V.  Kidder,  12. 

Cowing  V.  Snow,  548. 

Cowles  V.  Dunbar,  291. 

Cox  V.  Burbridge,  34. 

Cox  V.  Hall,  385. 

Cox  V.  Vanderkleed,  348. 

Coxe  V.  Whitney,  238. 

Craig  V.  Gilbreth,  557. 

Cram  v.  Bailey,  545,  546. 

Crandall  v.  James,  496. 

Crane  v.  Hummerstone,  106. 

Crane  v.  London  Dock  Co.,  568. 

Crane  v.  Sayre,  91. 

Oravath  v.  JPlympton,  533. 

Crawford  v.  AJ orris,  105,  107. 

Crawford  v.  Satchwell,  300. 

Creed  agst.  Hartmann,  396. 

Crenshaw  v.  Moore,  513. 

Creps  V.  Dunham,  515. 

Cressonv.  Stout,  373,  374. 

Crocker  v.  New  Lond.  &c.  R.  R.  Co.,  104, 

176,  177. 
Crocker  v.  Spencer,  446. 
Crockett  v  Lattimer,  440. 
Crofoot  V.  Bennett,  366,  512. 
Croft  V.  Alison,  43,  50. 
Crookes  v.  Fry,  39. 
Crookshank  v.  Kellogg,  101. 
Cross  v.  Johnson,  88. 
Cross  v.  Phelps,  625. 
Crossman  v.  Bradley,  343. 
Crossman  v.  Harrison,  255. 
Crouch  V.  Gridley,  34. 
Cruikshank  v.  Gardner,  42. 
Crvgier  v.  Long,  200. 
Culling  v.  Tuifnai,  374. 
Cummins  v.  Noyes,  586. 
Cunningham  v.  Dyer,  114. 
Cunningham  v.  Pitzer,  25,  630, 
Curl  V.  Lowell,  81. 
Curry  v.  Com.  I  s.  Co.,  378. 
Curry  v.  Pringle,  375,  877. 
Curtis  V.  Carr<on,  129. 
Curtis  V.  Fay,  490. 
Curtis  V.  Groat,  362. 
Curtis  V.  Ward,  639. 


TABLE    or    CASES    CITED. 


XVll 


Curtiss  V.  Hoyt,  378. 
Gushing  v.  LoQgfellows,  618. 
Cushman  v  Churchill,  610. 
Cushman  v.  Ryan,  286. 
Cystead  v.  Shed,  81. 


Dailey  v.  Crowley,  640. 
Dailey  v.  Grimes,  561. 
Dailey  v.  May,  411. 
Dains  v.  Prosser,  409. 
Dale  Manf.  Co.  v.  Grant,  3. 
Dale  V.  Radcliffe,  327. 
Dale  V.  Wood,  216,  236. 
Dallam  v.  Fitler,  518. 
Dameron  v.  Williams,  390. 
Damon  v.  Bryant,  626. 
Dcmron  v.  Roach,  103. 
Dane  v.  Gilniore.  589,  603. 
Daniels  v.  Pond,  377. 
Darbv  v.  Smith,  90. 
Darling  v.  Bowen,  288,  289. 
Davies  v.  Jenkins,  309. 
Davies  v.  Mann,  597. 
Davies  v.  Marshall,  14. 
Davis  V.  Bush,  804,  336. 
Davis  V.  Caswell,  99. 
Davis  V.  Clements,  630. 
Davis  V.  Cooper,  589,  614. 
Davis  V.  Danks,  518. 
Davis  V.  Davis,  607. 
Davis  V.  Hastings,  261. 
Davis  V.  Hooper,  6u8. 
Davis  V.  Jones,  370. 
Davis  V.  Mason,  90. 
Davis  V.  ^lerrill,  269. 
Davis  V.  Newkirk,  397. 
Davis  V.  Russell,  270,291. 
Davis  V.  S  mnders,  3. 
Davis  V.  Young,  614. 
Day  V.  Bisbitch,  374. 
Day  V.  Perkins,  374. 
Day  V.  Porter,  62,  312. 
Day  V.  Woodworrh,  252. 
Deane  v.  Blackwell,  252. 
Deane  v.  Clayton,  144,  145. 
Dean  v.  Hogg,  164. 
Dean  v.  Horton,  238. 
Dean  v.  Newhall,  74. 
Decker  agst.  Gardiner,  109. 
Deezell  v.  Od^ll,  366. 
De  Gondouin  v.  Lewis,  241,  48i 
Delano  v.  Thurnell,  535. 
Demick  v.  Chapman,  507,  608. 
Denby  v.  Haviston,  646. 
Denison  v.  Hvde,  036,  643. 
Dennis  v.  Snell,  439. 
Dennison  v.  Plumb,  463. 
Denny  v.  Warren,  419. 
Denny  v.  Willard,  444. 
Vol.  L— B 


Despatch  Line  of  Packets  v.  Bellamy 

Manf.  Co.  384. 
Devaynes  v.  Boys,  83. 
Devin  v.  Devin,  452. 
Devine  v.  Rand,  104,  229. 
Devlin  v.  Stone,  447. 
Dewey  v.  Thrall,  579. 
Dewitt  V.  Buchanan,  196,  197. 
Dews  V.  Riley,  8. 
Dexter  v.  Cole,  14. 
Deyo  V.  Jennison,  389,  446. 
Dibble  v.  Morris,  102,  104,  233,  644. 
Dick  V.  Cooper,  445. 
Dickerman  v.  Abrahams,  190. 
Dickey  v.  McDonnell,  125. 
Dickinson  v.  Boyle,  22,  78,  103. 
Dillingham  v.  Snow,  498. 
Dimes  v.  Petley,  598. 
Dixon  V.  Watkins,  626. 
Doane  v.  Eddy,  426. 
Dobree  v.  Napier,  196,  486." 
Dodge  V.  Way,  419. 
Doggett  V.  Cook,  325. 
Dolan  V.  Buzzell,  381. 
Dolan  V.  Pagan.  239. 
Dole  V.  Erskme,  101,  134,  217,  240. 
Donaghe  v.  Roudeboush,  588,  592. 
Donnellv  v.  Harris,  286. 
Doolittle  V.  Linsley,  67. 
Dorcey  v.  Patterson,  513. 
Dorman  v.  Long,  81. 
Dorrell  v.  Johnson,  96. 
Doswell  v.  Irapey,  8. 
Doty  V.  Gorham,  378. 
Dougherty  v  Dorsev,  96. 
Dow  V.  Smith,  309,  446,  476. 
Downing  v.  Butcher,  350. 
Downing  v.  Roberts,  503. 
Downs  V.  N.  Y.  &c.  R.  R.  Co.  167. 
Drake  v.  Barrymore,  96,  606. 
Drake  v.  Beckham,  509. 
Draper  v.  Arnold,  492. 
Drew  V.  Davis,  495. 
Drummond  v.  Humphreys,  29. 
Drury  v.  Defontaine,  584. 
Duberley  v.  Gunning,  118. 
Dubois  V.  Beaver,  92. 
Dudley  v.  Ward,  374. 
Duffv.  Lyon,  91. 
Duke  of  Brunswick  v.  King  of  Hanover. 

196. 
Dumont  v.  Smith,  408,  642. 
Duncan  v.  Spear,  614. 
Duncan  v.  Stale  up,  104. 
Duncan  v.  Thwaites,  253. 
Dunham  v.  Lee,  404. 
Dunston  v.  Peterson,  292,  309. 
Durand  v.  HoUins,  9,  25. 
Durgin  v.  Leighton,  109. 
Dustin  V.  Covvdry,  401. 


XVlll 


TABLE    OF    CASES   CITED. 


Dutcber  v.  Hinder,  310. 

Dye  V.  Leathcrdall,  216,  GIO,  613. 

Dyer  v.  Cady,  543. 

Dyer  v.  Smith.  93,  324. 

Dygert  v.  Bradley,  4,  6. 

Eames  v.  Johnson,  500. 

Eanes  v.  The  State,  291. 

Earing  v.  Lansingh,  603. 

Earl  V.  Camp,  431,  433,  528,  530. 

Earl  of  Mauchester  v.  Vale,  83. 

Earle  v.  Hall.  46. 

Earle  v.  Holderness,  406. 

Eastern  R  E.  Co  v.  Broom,  102. 

Eastman  v.  Curtis,  476. 

Eastman  v.  Grant,  72,  73,  74. 

Eastman  v.  Wright,  94. 

Eaton  V.  Cooper,  472. 

Eaton  V.  Ljmde,  359. 

Eddie  v.  Davidson,  459. 

Eddy  V.  Howard,  63. 

Edgell  V.  Francis,  281,  343. 

Edmondson  v.  Machell,  256. 

Edwards  v.  Reach,  643. 

Edwards  v.  Edwards,  525. 

Edwards  v.  Ferris,  323. 

Edwards  v.  Harben,  581. 

Egginton's  Case,  295 

Elder  v.  Bemis,  42,  75,  76. 

Elder  v.  Morrison,  25,  138. 

Eliot  V.  Allen,  l(i5,  118. 

Elliot  V.  Kilburn,  217. 

Elliott  V.  Brown,  129, 131,  133, 134,  260, 

Eiliott  V.  Peirsol,  115. 

Ellis  V.  Bitzer,  69. 

Ellis  V.  Howard,  396,  631,  636. 

Ellis  V.  Messervde,  631. 

Ellis  V.  Short,  244. 

Elwes  V.  I\law,  374. 

Ely  V.  Ehle,  368,  381,  568,  570. 

Ely  V.  Schumacher,  638. 

Emanuel  v.  Cucke,  632. 

Embrey  v.  Owen,  12. 

Emerson  v.  Hyde,  580. 

Emery  v.  Fowler,  97,  99. 

Engle  V.  Jones,  637. 

English  V.  Purser,  205,  221. 

Eiisman  v.  Waters,  381. 

Erwin  v.  Smaller,  190. 

Esty  V.  Wilmot,  116,  ir,2,  216. 

Etchberry  v.  Levielle,  253,  255. 

Evans  v.  Munkley,  607. 

Everett  v.  Herriu,  472. 

Everts  v.  Everts,  237. 

Evertson  v.  Sutlon,  56. 

Ewart  V.  Jones,  307. 

E wings  V.  Walker,  597. 

Fabrigas  v.  Mostyn,  117. 
Factory  v.  McConihe,  505. 


Falconer  v.  Freeman,  573. 

Fales  V.  Stone,  261. 

Farebrother  v.  Ansley,  67. 

Fanner  v.  Hunt,  381. 

Farmer's  Loan  and  Trust  Co.  v.  Hen- 

drickson,  414,  415. 
Farr  v.  Newman,  534. 
Farrant  v.  Thompson,  373. 
Farrel  v.  Colwell,  461,  638. 
Farrell  v.  Calkins,  116. 
Farrell  v.  Hildreth,  535. 
Farrington  v.  Payne,  588,  600. 
Farver  v.  State,  122. 
Fai-well  v.  Warren,  251. 
Fay  V.  O'Neill,  278. 
Fellows  V.  Goodman,  352. 
Feltham  v.  Cartwright,  111. 
Felton  V.  Fuller,  6:^7,  639. 
Fennell  v.  Ridler,  .584. 
Fennings  v.  Grenville,  564. 
Fenwick  v.  Laycock,  534. 
Ferguson  v.  Earl  of  Kinnoul,  8. 
Ferguson  v.  Terry,  23. 
Ferrers  v.  Arden,  98. 
Ferrin  v.  Symonds,  475,  478. 
Fetter  v.  Be:de,  97,  102,  249,  600. 
Fields  V.  Law,  85. 
Fiero  v,  lietts,  450,  459,  567. 
Fiiliter  v.  Phippard,  9. 
Finch  V.  Duddin,  39. 
Findon  v.  Parker,  38. 
Fink  V.  Albany  &e.  R.  R.  Co.,  168. 
Fink  V.  Hawks,  112. 
Fisher  v.  Bridges,  217. 
Fisher  v.  Clark,  10. 
Fisher  v.  Cobb,  445. 
Fisher  v.  Fellows,  268. 
Fi-her  v.  Magnav,  336. 
Fiske  V.  Small,  579,  621. 
Fitch  V.  Rogers,  418. 
Fitts  V.  Hall,  41. 
Fitzherbert  v.  Shaw,  374. 
Fitzpatrick  v.  Kellv,  302. 
Flaggv.  Willington,  621. 
Flanagan  v.  Tin«i,  39,  202. 
Flanagan  v.  Wood,  515,  574. 
Flanders  v.  Cross,  499. 
Fleet  v.  HoUeukemp,  252. 
Fletcher  v.  Baxter,  309, 
Fletcher  v.  Cole,  529. 
Fletcher  v.  Peck,  19. 
Flinn  v.  Anders,  205. 
Flint  v.  Whitney,  306. 
Folger  v.  Fields.  108,  593. 
Folger  V.  Hinckley,  465. 
Fonda  v.  Van  Home,  568. 
Foot  v.  New  Haven   &  Northampton 

Co.,  161. 
Foote  v.  Cincinnati,  52. 
Foote  V.  Nichols,  251. 


TABLE   OF    CASES    CITED. 


XIX 


Forbes  v.  Shattuck,  377,  56a,  5C4. 

Ford  V.  Cobb,  369,  374. 

Ford  V.  Jones,  235,  243. 

Ford  V.  Monroe,  78. 

Ford  agst.  Williams,  397. 

Forde  v.  Skinner,  125. 

Fornian  v.  Dawes.  615. 

Fort  V.  Brown,  230. 

Foss  V.  Stewart,  446. 

Foster  v.  Hall,  631. 

Foster  v.  Perkins,  535. 

Foster  v.  Pettibone,  437. 

Foster  v.  "Wiley,  441. 

Fouldes  V.  Willoughby,  34. 

Fox  agst.  Abel,  395. 

Fox  V.  Hanbury,  459. 

Fox  V.  Jackson,  23,  93. 

Fox  V.  Northern  Liberties,  368. 

Fox  V.  Smith,  112. 

Fox  V.  Wood,  433. 

Foxhall  V.  Barnett,  353. 

Francis  v.  Leach,  194. 

Francisco  v.  State,  315. 

Frantz  v.  Lenhart,  194. 

Franz  v.  Hilterbnind,  637. 

Fraser  v.  Berkeley,  337. 

Frean  v.  Cruikshanks,  76. 

Freeman  v.  Blewitt,  475. 

Freeman  v.  Rankins,  513. 

Freeman  v.  Rosher,  51. 

Freethv  v.  Freethy,  453. 

French  v.  Marstin,  17,  82,  311. 

French  v.  White,  389. 

Frisbee  v.  Langworthy,  463. 

Frost  V.  Mott,  446. 

Frost  V.  Shaw,  446. 

Frost  v.  Thomas,  193. 

Frothingham  v.  McKusick,  543. 

Fry  V.  Caufield,  416,  446. 

Fryatt  v.  Sullivan  Co.  369. 

Frye  v.  Hinklev,  69. 

Fullam  V.  Stearns,  103,  465,  586. 

Fuller  V.  Bean,  596. 

Fuller  V.  Bowker,  353. 

Fuller  V.  Chamberlin,  106. 

Fuller  V.  Gould,  184. 

Fuller  V.  Paige,  363. 

Fuller  V.  Rounceville,  83,  605. 

Ful  on  V.  Staats,  193. 

Furlong  v.  Bartlett,  385. 

Gaffield  v.  Hapgood,  374. 

Gage  V.  Currier,  494. 

Gage  V.  Dauchy,  453. 

Gahan  v.  Lafitte,  8. 

Gaither  v.  Blowers,  317, 335. 

Gale  V.  Daliymple,  218,  233. 

Gale  V.  Ward,  373. 

Galiiraore  v.  Ammerman,  339,  331. 

Gallup  V.  Josselyn,  557. 


Galvin  v.  Bacon,  569. 
Gambling  v.  Prince,  518. 
Games  v.  Robb,  611. 
Gardner  v.  Adams,  37. 
Gardner  v.  Campbell,  383,  475,  478. 
Gardner  v.  Field,  108,  646. 
Gardner  v.  Thomas,  199. 
Garner  v.  Willis,  443. 
Garrett  v.  Gwathmey,  613. 
Garrity  v.  Haynes,  455. 
Garvin  v.  Blocker,  335. 
Gaskell  v.  Marshall,  534. 
Gates  V.  Gates,  475. 
Gates  V.  Lounsbury,  17,  139,  135. 
Gates  V.  Miles,  3,  5,  7. 
Gauche  v.  Mayer,  520. 
Gauntlett  v.  King,  66. 
Gay  V.  Smith,  116,  547,  553. 
Gaylard  v.  Morris,  141. 
Gearheart  v.  Smalhvood,  113. 
Gelhaar  v.  Ross,  5  !r5,  636. 
Gelston  v.  Hoyt,  115,  616. 
Genner  v.  SpMrks,  314. 
Gennings  v.  Fundeburg,  5. 
Gibbon  v.  Pepper,  3,  126,  208. 
Gibbs  V.  Chase,  3-32,  383,  462,  539. 
Gibson  v.  Chillicothe  Bank,  550. 
Gibson  v.  Jenney,  446. 
Gilbert  v.  Bartenshaw,  118. 
Gilbert  v.  Dickerson,  563. 
Gilbertson  v.  Richardson,  20. 
Gilding  v.  Eyre,  2S6. 
Gile  V.  Devens,  435. 
Giles  V.  Simonds,  160. 
Gillard  v.  Brittan,  4u6,  636. 
Gillen  v.  Wilson,  114. 
Gillerson  v.  Small,  111. 
Gillet  V.  Mason,  358. 
Gillett  V.  Ball,  557. 
Gillett  V.  Thiebold,  325. 
Gillis  V.  Pennsylv.  R.  R.  Co.,  5, 144,  178. 
Gilman  v.  Emery,  595. 
Gilman  v.  Hill,  456. 
Gilman  v.  Sanborn,  385. 
Gilmore  v.  Holt,  465. 
Gilmore  v.  Wilbur,  586. 
Gilpatrick  v.  Hunter,  63,  69. 
Gilson  V.  Fisk,  58'). 
Gilson  V.  Wood,  548. 
Ginsberg  v.  Pohl,  510. 
Gisborne  v.  Wyatt,  89,  6i2, 
Gladwell  v.  Steggall,  248. 
Glass  Co.  V.  Wolcott,  586. 
Glazer  v.  Clift,  608. 
Gleason  v.  Edmunds,  83. 
Glen  V.  Hodges,  196. 
Glever  v.  Hynde,  308. 
Glover  v.  Horton,  390. 
Glover  v.  London  &  South  Western  R. 
R.  Co.,  166. 


XX 


TABLE    OF    CASES   CITED. 


Glover  v.  Whittenliall,  424. 

G'.j'nn  V.  Houston,  273. 

Gock  V.  Keneda,  5G5. 

Goddard  v  Bolster,  363. 

Goddard  v.  Grand  Trunk  R.  R.  43. 

Goets  V.  Ambs,  231. 

GoflFv.  Gt.  North.  R.  R.  Co.,  163. 

Goff  V.  Kilts,  358. 

Goldsmith  v.  Stetson,  368. 

Goodman  v.  Taylor,  3. 

Goodrich  v.  Church,  445, 

Goodrich  v.  Jones,  377,  586. 

Goodrich  v.  Yale,  99. 

Goodwin  v.  Avery,  136. 

Goodwin  v.  Harrison,  331. 

Gordon  v.  Clifford,  319. 

Gordon  v.  Harper,  373,  513,  513. 

Gordon  v.  Robinson,  54. 

Gordon  v.  Rolt,  587. 

Gordon  v,  Upham,  349. 

Gore  V.  ChadAvick,  347,  359. 

Gorrill  v.  Whittier,  116. 

Gorton  v.  Falkner,  411. 

Gorton  v.  Frizzell,  303. 

Gosden  v.  Elfick,  383. 

Goss  Y.  Emerson,  557. 

Gould  V.  GoiJd,  296. 

Goulet  V.  Asseler,  544. 

Goupil  V.  Simouson,  287. 

Graham  v.  McCreary,  575. 

Granger  v.  Hill,  387,  313. 

Grant  v.  Moser,  268,  384,  385,  393,  334. 

Gray  v.  Ayi'es,  143. 

Gray  v.  Waterman,  643. 

Gray  v.  Young,  331. 

Great  Falls  Co.  v.  Worster,  316,  613. 

Green  v.  Bartram,  385. 

Green  v.  Bedell,  330,  333. 

Green  v.  Burke,  430. 

Green  v.  Craig,  351. 

Green  v.  Goddard,  140. 

Green  v.  Kennedy,  394. 

Green  v.  Morse,  309. 

Greenfield  Bank  v.  Leavitt.  639. 

Greenwood  v.  Seymour,  163. 

Greer  v.  Emerson,  43. 

Gregg  V.  Wyman,  10. 

Gregory  v.  Cotterell,  248. 

Gregory  v.  Hill,  129,  135,  151,  210,  401. 

Gregory  v.  Piper,  7. 

Griffin  v.  Coleman,  124,  311,  316. 

Griffith  V.  Wifliams,  87. 

Griffiths  V.  Dimnett,  315. 

Grinham  v.  Willey,  383. 

Grinnell  v.  Cook,  552. 

Grinnell  v.  Phillips,  51,  490. 

Grinnell  v.  Stewart,  350. 

Grisl>y  v.  Moffat,  233. 

Griswold  v.  Sedgwick,  399. 

Grumon  v.  Raymond,  59,  373,  299,  433. 


Guernsey  v.  Morse,  338. 
Guille  V.  Swan,  16,  63. 
Gundry  v.  Feltham,  216. 
Guy  V.  Livesey,  180. 
Gyfford  v.  Woodgale,  819,  627. 
Gyre  v.  Culver,  137. 

Habberton  v.  Wakefield,  626. 

Hadesden  v.  Gryssel,  356. 

Hager  v.  Danforth,  154. 

Haggerty  v.  Wilber,  420. 

Hahn  v.'Ritter,  85. 

Hair  v.  Little,  105. 

Hale  V.  Huntlev,  410,  476. 

Haley  v.  Caller'  613. 

Hall  V.  Booth,  270,  291. 

Hall  V.  Davis,  336. 

Hall  V.  Feamley,  83,  207.    • 

Hall  V.  Howd,  23,  300,  331. 

Hall  V.  Parsons,  580. 

Hall  V.  Pickard,  551. 

Hall  V.  Planner,  368. 

Hall  V.  Power,  178. 

Hall  V.  Ray,  465,  645. 

Hall  V.  Robinson,  37. 

Hall  V.  Roijers,  339. 

Hall  V.  Strvker,  573,  636. 

Hallett  V.  Byrt,  437. 

Hallett  V.  Novion,  198,  486. 

Halsey  v.  Woodruff,  106,  114. 

Hambly  v.  Trott,  533. 

Hamilton  v.  Fulton,  63. 

Hamilton  v.  Goding,  597. 

Hamilton  v.  Hunt,  14. 

Hamilton  v.  Rogers,  541. 

Hamilton  v.  Russell,  581. 

Hamilton  v.  Williams,  438. 

Hammatt  v.  Russ,  77. 

Hammer  v.  Pierce,  181. 

Hammond  v.  Howell,  8. 

Hammond  v.  Plimpton,  509. 

Handcock  v.  Baker,  368. 

Handy  v.  Johnson,  17,  133. 

Hanks  v.  Deal,  41. 

Hanly  v.  Levin,  110. 

Hannier  v.  Wilsey,  401,  406,  408,  513, 

545,  635,  636. 
Hanna  v.  Steinberger,  449. 
Hanuaford  v.  Hunn,  198. 
Hannen  v.  Edes,  317,  320. 
Hanuon  y.  The  State,  541. 
Hardage  v.  Cofi'nian,  25. 
Hardcastle  v.  South  Yorkshire  &c.  R. 

R.  Co.,  144. 
Hardenburgh  v.  Crary,  227. 
Hardin  v.  Kennedy,  34. 
Hardy  v.  Clendening,  383. 
Harris  v.  Butterly,  94. 
Harris  v.  Dignum,  383. 
Harris  v.  Nicholas,  50. 


TABLE    OF    CASES    CITED. 


XXI 


Harris  V.  Stevens,  170,  178. 

Harrison  v.  Bulcock,  503. 

Harrison  v.  Davis,  507,  607. 

Harrison  v.  Dixon,  608,  609. 

Harrison  v.  Mitcliell,  393. 

Harrison  v.  Nichols,  426. 

Harry  v.  Graham,  33. 

Hart  V.  Fitzerald,  607. 

Hart  V.  Hyde,  417,  446,  462,  518. 

Hart  V.  Skinner,  649. 

Hart  V.  Ten  Eyck,  363. 

Hartley  v.  Moxham,  383. 

Harvey  v.  Sides  &c.  Co.,  647. 

Hasbrouck  v.  Lounsbuiy,  555. 

Hasbrouck  v.  Vanclervoort,  190. 

Haskell  v.  Sumner,  302,  428. 

Haskill  V.  Andros,  425,  446. 

Hathaway  v.-  Goodrich.  319,  627,  630. 

Hathaway  v.  Rice,  133,  184,  211,  213, 

214. 
Havens  v.  Hartford  &  New  Haven  R. 

R.  Co.,  204. 
Hawes  v.  Dingley,  621. 
Hawk  V.  Haman,  39. 
Hawk  V.  Ridgway,  104. 
Hawkins  v.  Hatton,  62. 
Hawkins  v.  Johnson,  301. 
Hawks  V.  Charlemont,  42. 
Hawley  v.  Butler,  290. 
Hay  V.  Kitchen,  209. 
Hayden  v.  Shed,  277,  391,  435. 
Hay  ward  Rubber  Co.  v.  Duncklee,  518, 

519 
Hazel  V.  Clark,  235. 
Head  v.  Briscoe,  38,  39. 
Heady  V.  Wood,  130. 
Heald  v.  Sargeant,  458. 
Heath  v.  Milward,  608. 
Heath  v.  M'Inroy,  648. 
Heath  v.  West,  51*3,  540,  547. 
Heermance  v.  Vernoy,  378. 
Heitzman  v.  Divil,  644. 
Hemdon  v.  Bartlett,  562. 
Heminway  v.  Saxtou,  205. 
Henderson  v.  Brown,  502. 
Henderson  v.  Syles,  102. 
Hendricks  v.  Decker,  508. 
Henly  v.  Broad,  61,  62. 
Henry  v.  Lowell,  344. 
Henry  v.  Sargeant,  496,  497,  504. 
Henry  v.  Sennett,  107. 
Henry  v.  Tilson,  317,  319. 
Plerring  v.  Hoppock,  555. 
Herring  v.  Hudson.  9. 
Hess  V.  Johnson,  25. 
Hewett  V.  Swift,  165, 180. 
Hewlins  v.  Shippam,  160. 
Heydon  v.  Heydon,  423,  459. 
Heydon's  Case,  106,  107. 
Heyer  v.  Burger,  56. 


Heywood  v.  CoUinge,  287. 

Hibbard  v.  N.  Y.  &  Erie  R.  R.  Co.,  165. 

Hibbard  v.  Stewart,  366. 

Hickey  v.  Huse,  289,  290. 

Hickok  V.  Coates,  443,  592. 

Hickok  V.  Trustees  of  the   Village  of 

Plattsburgh,  52. 
Hicks  V.  Dorn,  483. 
Hlgby  V.  Williams,  83,  93. 
Higginbotham  v.  State.  122. 
Higgins  V.  Hayward,  588. 
Higgins  V.  Watervliet  T.  Co.,  162. 
Higgins  V.  Whitney,  401,  633,  636. 
Higginson  v.  York,  15. 
High  V.  Wilson,  439,  626. 
Hill  V.  Bateman,  305. 
Hill  V.  Davis,  586. 
Hill  V.  Goodchild,  105,  107. 
Hill  V.  Goodrich,  287. 
Hill  V.  Morey,  47,  81. 
Hill  V.  Rogers,  133. 
Hill  V.  Yates,  347. 
Hilliard  v.  Goold,  142,  175,  176. 
Hillman  v.  Baumbach,  618. 
Hiscox  V.  Greenwood,  358. 
Hitchcock  &  Thurland's  Case,  63. 
Hitchen  v.  Teale,  94. 
Hite  V.  Long,  591. 
Hoar  V.  Clute,  96. 
Hobart  v.  Hagget,  15. 
Hobbs  V.  Brauscomb,  270,  291. 
Hockless  V.  Mitchell,  631. 
Hodgdon  v.  Waldron,  561. 
Hodgeden  v.  Hubbard,  131,  401. 
Hodges  V.  Nance,  240. 
Hodgson  V.  Sidney,  509. 
Hodsoll  V.  Stallebrass,  358. 
Hogg  V.  Ward,  292. 
Hogue  V.  Penn,  26. 
Holbrook  v.  Pratt,  76. 
Holbrook  v.  Wight.  78. 
Holley  V.  Mix,  106,  270. 
Hollister  v.  Goodale,  418. 
Holloway  v.  Turner,  352,  644. 
Holly  V. "Brown,  77,  542. 
Holly  V.  Huggeford,  514,  526,  527,  560. 
Holmes  v.  Bagge,  213,  226. 
Holmes  v.  Doane,  383. 
Holmes  v.  Hodgson,  588. 
Holmes  v.  Moore,  533. 
Holmes  v.  Tremper,  374. 
Holroyd  v.  Lancaster,  344. 
Holro'yd  v.  Marshall,  541. 
Holt  V.  Johnson,  366. 
Holt  V.  Wilkes,  146. 
Holtum  V.  Lotum,  330. 
Holyoke  v.  Grand  Trunk  R.  R.,  248. 
Homer  v.  Battyn,  314. 
Hooker  v.  Smith,  129,  311. 
Hooksett  v.  Amoskeag  Manf  Co.  31. 


XXll 


TABLE    OF    CASES   CITED. 


Hooper  v.  Haskell,  251. 

Hooper  v.  Lane,  295.  435. 

Hoose  V.  Sherill,  56,  321. 

Hopkins  v.  Atlantic  &  St.  Lawrence  R. 

R.  Co.,  252. 
Hopkins  v.  Ciowc,  2S3. 
Hopkins  v.  Hopkins,  478,479. 
Hopper  V.  Reeve,  125,  206.  592. 
Hopple  V.  Higbee,  634,  637. 
Horn  V.  Baker,  370. 
Homer  v.  Battyn,  312. 
Horton  v.  Auchmcody,  61. 
Horton  v.  Hendershot,  432. 
Horton  v.  Hensley,  23. 
Hotchkiss  V.  McVickar,  423. 
Houghton  V.  Bacbman,  484,  485. 
Houlden  v.  Smith,  60. 
Hounsell  v.  Smyth,  146. 
Housatonic  &  Lee  Banks  v.  Martin,  483. 
Houston  V.  Howard,  576. 
Howard  v.  Newton,  93. 
Howard  v.  Peete,  206,  592. 
Howard  v.  Williams,  446. 
Howe  V.  Buffalo,  N.  Y.  &  E.  R.  R.  Co., 

29. 
Howe  V.  Farrar,  517,  614. 
Howe  V.  Keeler,  512,  548. 
Howe  V.  Newmarch,  42. 
Howe  V.  Reed,  621. 
Howe  V.  Wilson,  91. 
Howell  V.  City  of  Buffalo,  52. 
Howell  V.  Jackson,  156. 
Howell  V.  Ransom,  631. 
Hoye  V.  Bush,  299. 
Hoyt  V.  Chapin,  547. 
Hoyt  V.  Gelston,  104,  507,  615,  648. 
Hoyt  V.  Remick,  544. 
Hoyt  V.  Van  Alstjne,  446,  614. 
Hubbard  v.  Hunt,  397,  398. 
Hubbell  V.  Wheeler,  180. 
Hubbert  v.  Collier,  77,  84. 
Huckins  v.  City  of  Boston,  499. 
Huckle  V.  Money,  117. 
Hudson  V.  Howard,  283. 
Hudson  V.  Warner,  541. 
Huffer  V.  Allen,  286. 
Huggins  V.  Toler,  271. 
Hull  V.  Carnlev,  482,  544. 
Hull  V.  Pickersgill.  27. 
Hume  V.  Oldacre,  16. 
Hume  V.  Tufts,  513. 
Humphrey  v.  Douglass,  41. 
Humphrey  v.  Mitchell,  295. 
Humphries  v.  Johnson,  105. 
Hunt  V.  Ballew,  441. 
Hunt  V.  Bates,  601. 
Hunt  V.  Douglass,  386. 
Hunt  Y.  Haskell,  G39. 
Hunt  V.  Pratt,  33,  510. 
Hunter  v.  Harris,  626. 


Hunter  v.  Hudson  River  Iron  Co.,  50.. 

Hunter  v.  Perry,  567. 

Hunter  v.  Westbrook,  581. 

Huntley  v.  Bacon,  104,  252,  539,  647. 

Hurd  V.  Darling,  526. 

Hurd  V.  Fleming,  547,  555. 

Hurd  V.  West,  383,  484. 

Hurlburt  v.  Green,  506. 

Hurley  v.  Marsh,  196. 

Hurst  V.  Gwenap,  569. 

Hutchins  v.  Adams,  533. 

Hutchinson  V.  Lord,  509. 

Huxley  v.  Berg.  246. 

Huzzey  v.  Field,  44. 

Hyatt  V.  Adams,  201,  255. 

Hyde  v.  Cookson,  365. 

Hyde  v.  Cooper,  477,  394. 

Hyde  v.  Noble,  569. 

Hyde  v.  Stone,  563. 

Hynes  v.  Jungren,  304. 

Illinois  &c.  R.  R.  Co.  v.  Sutton,  169. 

Hott  V.  Wilkes,  144. 

Ilsley  V.  Nichols,  389, 

Imason  v.  Coiie,  142. 

Imlay  v.  Sage,  514. 

Ingalls  V.  Sprague,  67. 

Ingle  V.  Bell,  334. 

Inglee  v.  Bosworth,  492. 

Innes  v.  Wylie,  121. 

Ireland  v.  Elliott,  236. 

Ireland  agst.  Oswego,  Hannibal  &  Ster- 
ling Plank-road  Co.,  5. 

Irish  V.  Cloyes,  633,  641. 

Isaacs  V.  Third  Ave.  R.  R.  Co.,  44,  164^ 
190. 

Isack  V.  Clarke,  383. 

Ives  V.  Humphreys,  104. 

Ivy  V.  Bamhartt,'  399. 

Jacks  V.  Bell,  258. 

Jackson  v.  Second  Ave.  R.  R.  Co.,  162. 

Jackson  v.  Wood,  98. 

Jackson's  Case,  124. 

Jacobs  V.  Hoover,  221. 

James  v.  Campbell,  125. 

James  v.  Tait,  78. 

Jamieson  v.  Millemann,  161. 

Janes  v.  Martin,  399. 

Jarmain  v.  Harper,  448, 

Jarman  v.  Hooper,  396. 

Jarratt  v.  Gwathmey,  477. 

Jarvis  v.  Manlove,  238,  247. 

Jarvis  v.  Rogers,  557. 

Jay  V.  Almy,  104. 

Jean  v.  Sandiford,  77, 103,  119. 

Jeanes  v.  Davis,  201. 

Jefferson  v.  Adams,  257. 

Jelly  V.  Bradley,  150. 

Jenings  v.  Florence,  286. 


TABLE    OP    CASES   CITED. 


XXlll 


Jenks  V.  Colemiin,  167. 

Jenner  v.  Sparks,  312. 

Jennings  v.  Davis,  452. 

Jewett  V.  Banning,  228,  235. 

Jewett  V,  Goodall,  207. 

Johns  V.  Dodsworth,  106. 

Johnson  v.  Castleman,  34. 

Johnson  v.  Dalton,  196. 

Johnson  v.  Evans,  459. 

Johnson  v.  Hannahan,  62. 

Johnson  v.  Maxon,  265. 

Johnson  v.  McK^e,  221,  231,  241. 

Johnson  v.  Northwood,  210. 

Johnson  v.  Packer,  110. 

Johnson  v.  Parker,  636. 

Johnson  v.  Patterson,  144. 

Johnson  v.  PeiTy,  258. 

Johnson  v.  Stone,  14,  27,  525,  628. 

Johnson  v.  Sumner,  483,  639. 

Johnson  v.  Terry,  227. 

Johnson  v.  Thompson,  63. 

Johnson  v.  Tompkins,  265. 

Johnson  v.  Whitefield,  5. 

Johnson  v.  Vutrick,  94. 

Johnstcm  v.  Riley,  298. 

Johnston  v.  Sutton,  265,  328. 

Johnston  v.  Vanamringe,  300. 

Jones  V.  Clay,  258. 

Jones  V.  Hoar,  586. 

Jones  V.  Lewis,  631. 

Jones  V.  Lowell,  62,  79. 

Jones  V.  McNeil,  368,  507,  601. 

Jones  v.  Morrel,  24. 

Jones  V.  Price,  200. 

Jones  V.  Sparrow,-  259. 

Joralimon  v.  Pierpont,  92. 

Jordan  v.  Gallup,  475. 

Jordan  v.  Gillen,  38. 

Jordan  v.  Wyatt,  7. 

Joslyn  V.  Tracy,  468. 

Josselyn  v.  McAllister,  844,  850,  351. 

Judson  V.  Cook,  23,  390. 

Justice  V.  Mendell,  567. 

Kaley  v.  Shed,  633,  635. 
Karr  v.  Barstow,  599. 
Kasson  v.  The  People,  75,  396. 
Keene  v.  Dilke,  644. 
Kelley  v.  Noves,  504. 
Kelley  v.  Taylor,  595. 
Kellogg  V.  Schuyler,  34. 
Kelly  V.  Breusing,  626. 
Kelly  V.  Gilmau,  435. 
Kelly  V.  Paris,  627. 
Kelsey  v.  Henry,  259. 
Kempton  v.  Cook,  107. 
Kendall  v.  PoAvers,  58. 
Kendall  v.  Stokes,  184. 
Keniston  v.  Little,  428,  532. 
Kennedy  v.  M'Arthur,  34. 


Kennedy  v.  Terrill,  57. 

Kennedy  v.  Waller,  554. 

Kennedy  v.  Whitwell,  639,  642. 

Kennersley  v.  Orpe,  98. 

Kent  V.  Willey,  621,  624. 

Kerbey  v.  Den  by,  645. 

Kerns  v.  Piper,  50. 

Kerr  v.  Mouat,  432. 

Kerr  v.  Mount,  391,  399,  590. 

Kettler  v.  Johnson,  335. 

Keyes  v.  Devlin,  131,  236. 

Keyes  v.  Howe,  523. 

Keyworth  v.  Hill,  39. 

Kilbourn  v.  Waterous,  111. 

Kilburn  v.  Demming,  411,  446. 

Kimball  v.  Marshall,  543. 

Kimball  v  Wilson,  94. 

Kine  v.  Evershed,  282. 

King  v.  Baker,  518. 

King  V.  Chase,  98,  491.. 

King  V.  Chilverscoton,  322, 

King  V.  Danser,  431. 

King  V.  Hoare,  601. 

King  V.  Inhitbs.  of  Moor  Critchell,  322. 

King  V.  Orser,  438. 

King  V.  Phillips,  562. 

Kingsbury  v.  Collins,  218. 

Kingsbury  v.  Pond,  455. 

Kingsley  v.  Hall,  305. 

Kinning  v.  Buchanan,  339. 

Kirkpatrick  v.  Lockhart,  330. 

Kirwan  v.  Latour,  374. 

Kitchen  v.  Campbell,  100. 

Kittredge  v.  Emerson,  56. 

Kittredge  v.  Sumner,  525. 

Kittredge  v.  Woods,  376,  377. 

Klein  v.  Thompson,  228,  248. 

Kline  v.  Central  &c.  R.  R.,  170. 

Klingman  v.  Holmes,  257. 

Knickerbacker  v.  Colver,  63, 107. 

Knight  V.  Herrin,  465,  473, 636. 

Knight  V.  Lillo,  114 

Knot  V.  Barker,  408. 

Knott  V.  Cunningham.  62. 

Koenig  v.  Nott,  37, 181. 

Kolb  V.  Bankhead,  24. 

Koster  v.  Merritt,  581,582. 

Kountz  V.  Brown,  252. 

Kowing  V.  Manly,  38. 

Kreger  v.  Osborn,  209,  390. 

Kunkle  v.  State,  401. 

Labar  v.  Koplin,  113. 
Lacon  v.  Barnard,  600. 
Ladbroke  v.  Crickett,  431. 
Ladd  V.  Blunt,  567. 
Ladd  V.  Hill,  458. 
Ladd  V.  Thomas,  614. 
Lair  v.  Abrams,  207. 
Lake  v.  Billers.  439,626. 


XXIV 


TABLE   OF    CASES    CITED. 


Lamb  v.  Day,  481,  640. 

Lamb  v.  Palk,  4o. 

Lambert  v.  Hodgson,  339. 

Lambert  v.  Paulding,  423. 

Lam})Son  v.  Fletcher,  440.  . 

Lancaster  v.  Lane,  60. 

Lander  v.  Miles,  347. 

Lander  v.  Randall,  185. 

Lander  v.  Seaver,  184,  230, 

Lane  v.  Gotten,  50. 

Lane  v.  Hitchcock,  530. 

Lane  v.  Jackson,  418. 

Lane  y.  Wilcox,  104,  251,  637. 

Lanfear  v.  Sumner,  527. 

Langdon  v.  Bruce,  63. 

Langstaif  v.  Rain,  39. 

Lansing  v.  ]\Iontgomery,  82. 

Lansingh  v.  Parker,  212. 

La  Roe  v.  Roeser,  325. 

Lassell  v.  Reed,  377. 

Latourette  v.  Clarke,  196. 

Laughlin  v.  Eaton,  251. 

Law  v.  Illinois  A:c.  R.  R.  Co.  169. 

Lawrence  v.  Hedger,  291. 

Lawton  v.  Law  ton,  374. 

Lawton  v.  Salmon,  374,  379. 

Lay  V.  Bayless,  617. 

Laj'more  v.  Hendrix,  105. 

Leach  v.  Francis,  488,  571. 

Leach  v.  Kimball,  544. 

Leach  v.  Wilkinson,  96. 

Leaird  v.  Davis,  405. 

Leame  v.  Bray,  19. 

Leavitt  v.  Holbrook,  410,  446. 

Leavitt  v.  Metcalf,  416,  446. 

Le  Caux  v.  Eden,  485. 

Ledbetter  v.  Blassingame,  516. 

Ledwith  v.  Catchpole,  291. 

Lee  V.  Atkinson,  404. 

Lee  V.  Risdon,  373,  374. 

Lee  V.  The  Village  of  Sandy  Hill,  52. 

Lefebre  v.  Utter,  612. 

Legate  v.  Potter,  483. 

Leland  v.  Marsh,  329. 

Leonard  v.  Stacy,  26. 

Leroux's  Case,  116. 

Levy  V.  Edwards,  292. 

Levy  V.  Moylan,  301. 

Lewis  V.  Avery,  300,  326. 

Lewis  V.  Caraaw,  445,  554. 

Lewis  V.  Johns,  393. 

Lewis  V.  Littlefield,  41. 

Lewis  V.  Lyman,  377,  524. 

Lewis  V.  Morse,  623. 

Lewis  V.  Palmer,  57,  382,  430. 

Lewis  V.  Truesdale,  200. 

Lewis  V.  Welch,  584. 

Jjcwis  V.  Whittemore,  456.     ' 

Leyfield's  Case,  609. 

Libby  V.  Burnham,  493. 


Libby  v.  Cushman,  544. 

Liford's  Case,  370. 

Limbert  v.  Fenn,  508. 

Lindo  V.  Rodney,  485,  486. 

Linford  v.  Lake,  241. 

Linnen  v.  Cruger,  368. 

Linsley  v.  Bushnell,  104,  248,  647. 

Linsley  v.  Keys,  607. 

Lister  v.  Wri'ght,  196. 

Little  v.  Greenleaf,  329,  498. 

Little  V.  Merrill,  329,  496. 

Little  V.  N.  P.  Bank,  296. 

Little  V.  Tingle,  194. 

Littledale  v.  Scaith,  357. 

Littlehale  v.  Dix,  244. 

Lively  v.  Ballard,  9,  25. 

Livingston  v.  Bishop,  63,   74,   75,  107, 

109,  601. 
Livor  V.  Orser,  544. 
Lock  V.  Ashton,  277. 
Lockwood  V.  Bull,  528. 
Lockwood  V.  Younglove,  417. 
Lofiand  v.  Jefl'erson,  304. 
Loker  v.  Damon,  103. 
Long  V.  Bledsoe,  521. 
Long  V.  Chubb,  229. 
Longendyke  v.  Longendyke,  189. 
Longfellow  v.  Quimby,  639. 
Look  V.  Dean,  269. 
Looker  v.  Halcomb.  341. 
Loomis  V.  Green,  364,  368,  623. 
Loomis  V.  Teriy,  149. 
Lord  V.  Chadboume,  10,  11,  596. 
Loring  v.  Albora,  174,  220. 
Lotan  V.  Cross,  520. 
Lothrop  V.  Arnold,  447,  459,  565,  607. 
Loubz  V.  Hafner,  7. 
Louder  v.  Hinson,  252. 
Lovejoy  v.  Jones,  397,  556. 
Lovell  V.  Bnggs,  621. 
Lovell  V.  Sabin,  443. 
Lovier  v.  Gilpin,  632. 
Loweth  V.  Smith,  88. 
Lowry  v.  Walker,  420. 
Ludden  v.  Hazen,  580. 
Luddington  v.  Peck,  274,  328. 
Lund  V.  Tyngsbnrough,  245. 
Lunn  V.  Thornton,  541. 
Lunt  V.  Brown,  513,  548. 
Lupton  V.  White,  363. 
Luttrell  V.  Hazen,  47. 
Lyde  v.  Russell,  374. 
Lyford  v.  Putnam,  586. 
Lyman  v.  White  River  Bridge  Co.,  52. 
Lynch  v.  Murdin,  146. 
Lynd  v.  Picket.  446. 
Lyon  V.  Rood,  418. 
Lyon  V.  Yates,  391. 
Lythgoe  v.  Vernon,  585. 
Lytle  V.  Lee,  88. 


TABLE    OF    CASES    CITED. 


XXV 


Macfadzen  v.  Olivant,  182. 

Macfarland  v.  Dean,  318. 

Mack  V.  Parks,  4.11,  417. 

Mackalley's  Case,  303. 

Mackay  v.  Rinelander,  115. 

Maggiidge  v.  Eveletli,  513. 

Maher  v.  Ashmead,  371. 

Main  v.  McCarty,  310. 

Main  v.  Northeastern  R.  R.  Co.  53. 

Malcolm  v.  Spoor,  464,  479,  481. 

Mali  V.  Lord,  45,  385. 

Mallory  v.  Bryant,  309. 

Mallory  v.  Merritt,  33. 

Man  V.  Shiffner.  557. 

Mandeville  v.  Guernsey,  370,  371,  396, 

350. 
Mann  v.  Locke,  586. 
Mann  v.  Marsh,  80.  301. 
Manning  V.  Monaghan,  544. 
Maples  V.  N.  Y.  &  New  Haven  R.  R.  Co., 

168. 
Marble  v.  Keyes,  638. 
Marcy  v.  Darling,  378,  499. 
Marker  v.  Miller,  338. 
Markham  v.  Brown,  155. 
Marsh  v.  Beriy,  63. 
Marsh  v.  Lawrence,  544. 
Marsh  v.  Pier,  97. 
Marsh  v.  Potter,  190. 
Marsh  v.  White,  384,  539,  580. 
Marsh  v.  Williams,  336. 
Marshall  v,  Davis,  386,  547,  568,  569. 
Marshall  v.  Lloyd,  374. 
Marshall  v.  Oakes,  39, 
Martin  v.  Clark.  84. 
Martin  v.  Mansfield,  503. 
Martin  v.  Marshall,  59. 
Martin  v.  Payne,  181. 
Martini  v.  Coles,  554. 
Martin's  Case,  134. 
Martyn  v.  Podger,  439,  636. 
Mason  v.  Barker,  336,  341,  353. 
Mason  v.  Hidden,  538. 
Mason  v.  Keeling,  34. 
Mason  v.  Waite,  361. 
Mather  v.  Hood,  331. 
Mathews  v.  Biddulph,  831. 
Mathews  v.  Fiestel,  38. 
Mathews  v.  Terrv,  186,  338,  240. 
Matteson  v.  Curtis,  17. 
Matteson  v.  N.  Y.  Cent.  R.  R.  Co.,  348. 
Mattison  v.  Baucus,  544. 
Maund  v.  Monmouthshire  Canal  Co.,  531. 
May  v.  Bliss,  384. 

Mayor  of  Colchester  v.  JBrooke,  598. 
Mayor  of  Hereford's  Case,  334. 
Mayor  v.  Knowler,  502. 
McAuley  v.  State,  135. 
McCall  V.  McDowell,  351. 
McCaliis  V.  Hawes,  566. 


M'Carron  v.  O'Connell,  93. 

M'Carty  v  Vickery,  570. 

McClelland  v.  Ray,  143. 

McClure  v.  Phila.  &c.  R.  R.  Co,  168, 

174. 
McCombie  v.  Davies,  .557. 
McConaghy  v.  McMuUen,  238. 
McConihe  v.  Sawyer,  101. 
McCoy  V.  Curtice,  502. 
McCoy  V.  Lemon,  263. 
McCrea  v.  Marsh,  161. 
McCullough  V.  Walton,  647. 
McCuUy  V.  Malcom,  345. 
M'Curday  v.  Driscoll,  211. 
McDaniels  v.  Bucklin,  617. 
McDonald  v.  Wilkie,  429. 
McDougall  v.  Maguire,  339. 
McElhenny  v.  Wylie,  37. 
M'Farland"  V.  Smith,  513,  554. 
McGahey  v.  Moore,  513. 
McGehee  v.  Shafer,  62. 
McGlynn  v.  Billings,  580. 
McGuinty  v.  Herrick,  390. 
McGuire  v.  Grant,  46. 
Mclntyre  v.  Green,  64. 
Mclntyre  v.  Trumbull,  490. 
Mclvor  V.  McCabe,  196. 
McKee  v.  Judd,  37,  591. 
McKenzie  v.  Allen,  338,  344. 
McKenzie  v.  Hackstati;  300,  303. 
McKeon  v.  See,  9. 
M'Keown  v.  Johnson,  39. 
McKnight  v.  Ratcliff,  54. 
McLain  v.  Matlock,  158. 
McLaughlin  v.  Pryor,  93,  191. 
McMahon  v.  Green,  300,  303,  311. 
M'Manus  v.  Ciicket,  43. 
McManus  v.  Lee,  67. 
McMasters  v.  Cohen,  335. 
McMichael  v.  Mason,  634. 
McMurtrie  v.  Stewart,  33. 
McNall  V.  Vehon,  571. 
McNamara  v.  King,  347,  351,  353. 
McNeeley  v.  Hunton,  390. . 
McRaeny  v.  Johnson,  554. 
Meader  v.  Stone,  131. 
Meddowscroft  v.  Sutton,  368. 
Meeds  v.  Carver,  396. 
Megee  v.  Beirne,  549. 
Mellen  v.  Baldwin,  533. 
Mellen  v.  Thompson,  133,  309,  310,  317. 
Melville  v.  Brown,  458,  459,  461,  565. 
Melvin  v.  Fisher,  300. 
Menderback  v.  Hopkins,  78. 
Meredith's  Case,  124. 
Merest  v.  Harvey,  3. 
Mericle  v.  Mulks,  635. 
Meriton  v.  Coomlies,  142. 
Merrill  v.  Near,  83,  390. 
Merrill  v.  Sawyer,  419. 


XXVI 


TABLE    OF    CASES   CITED. 


ilcrrills  v.  The  Tarill"  ^lauf.  Co.,  648. 

Merrils  v.  Goodwin,  358. 

Merriman  v.  Bryant,  309. 

Merritt  v.  Miller,  139,  4U3. 

Merritt  v.  Read,  59,  391. 

Merryweatber  v.  Njxan,  28,  67. 

Mersereau  v.  Norton.  460. 

Messer  v.  Bailov,  628. 

Metcalf  V.  Clai4c,  287. 

Middlebrook  v.  Corwin,  377. 

Middleton  v.  Price,  317,  607. 

Middleton  v.  Robinson,  54. 

Milburn  v.  Beach,  647. 

Miiburn  v.  Oilman,  429. 

Miles  V.  Weston,  349. 

Milhouse  v.  Patrick,  34. 

Millay  v.  Millay,  233. 

Millen  v.  Sweitzer,  228. 

Miller  v.  Baker,  373,  382,  387,  462,  490. 

Miller  v.  Brinkerhoff,  391. 

Miller  v.  Foley,  300. 

Miller  v.  Grice,  326. 

Miller  v.  Lincoln,  261. 

Miller  v.  Plumb,  374. 

Miller  v.  Shaw,  194. 

Mills  V.  Camp.  575. 

Mills  V.  Caqjenter,  229. 

Mills  V.  Dawson,  396. 

Mills  V.  Martin,  381. 

Mills  V.  Warner,  515. 

Mills  V.  Wooters,  401. 

Milton  V.  Bragdon,  41. 

Milwaukee  &c.  R.  R.  Co.  v.  Finney,  164. 

Mitchell  V.  Billingsley,  104. 

Mitchell  V.  Dubose,  890. 

Mitchell  V.  Foster,  58. 

Mitchell  V.  Hughes,  508. 

Mitchell  V.  Lemon,  293. 

Mtchell  V.  Libbev,  99. 

Mitchell  V.  Milbaiik,  107,  115. 

Mitchell  V.  Smith,  203,  263. 

Mitchell  V.  State,  131. 

Mitchell  V.  Stetson,  359,  362,  559. 

Mobile  &c.  R.  R.  Co.  v.  McArthur,  169. 

Mock  V.  Kennedy,  451. 

Molony  v.  Dows,  196. 

Monks  V.  Dykes,  226. 

Monkton  v.  Ashly,  222. 

Montague  v.  Richardson,  416. 

Montgomery  v.  Wight,  427. 

Moon  V.  Eldred,  97. 

Moore  v.  Adam,  224.  246. 

Moore  v.  Bowman,  365,  449. 

Moore  v.  Erie  R.  R.  Co.,  365. 

Moore  v.  Fitchburg  R.  R.,  166, 167,  203. 

Moore  v.  Pennell,  461. 

Moore  v.  Robinson,  554. 

Moore  v.  Schultz,  618. 

Moore  V.  Taylor,  613. 

Moore  y.  Watts,  272. 


Moors  y.  Parker,  83,  610. 

Moran  y.  Dawes,  180,  181. 

Morely  y.  Dunbar,  237,  238, 

Mores  y.  Conham,  557. 

Morgan  y.  Bowman,  46. 

Morgan  y.  Cox,  5. 

Morgan  y.  Hughes.  59,  283. 

Morgan  v.  Varick,  373,  374. 

Morgans  y.  Bridges,  300. 

Moriarty  y.  Brooks,  129,  156. 

Moroney  y.  Old  Colony  «fec.  R.  R.  Co., 

168. 
Morris  v.  Hyde,  481. 
Morris  y.  Piatt,  130,  132. 
Morris  y.  Van  Voast,  463. 
Morrison  y.  Bedell,  77. 
Morrison  y.  Wright,  442. 
Morrow  y.  Belcher,  83. 
Morse  y.  Pike,  559. 
Morse  y.  Presby,  116. 
Mortimer  y.  Thomas,  350. 
fviortin  y.  Shoppe,  122. 
Morton's  Case,  63. 
Moses  y.  Dubois,  267. 
Mosher  y.  The  People,  272. 
Mostyn  y.  Fabrigas,  196,  197,  198. 
Moulton  y.  Norton,  491. 
Moulton  y.  Robinson,  460,  547. 
Mower  y.  Stickney,  439. 
Mowrey  y.  Walsh,  567. 
Mugford  y.  Richardson,  150. 
Muggridge  y.  Eyeleth,  551. 
Mullius  y.  Scott,  262. 
Munger  y.  Baker,  19. 
Murdock  y.  Gilford,  373. 
Mure  y.  Kaye,  332. 
Murphy  y.  Dart,  238. 
Murphy  y.  Tripp,  616. 
Murray  y.  Boyne,  122,  236. 
Murray  y.  Ezell,  397. 
Mussey  y.  Cummings,  479. 
Mussey  y.  Scott,  401. 
Mussina  y.  Belden,  1£6. 
Myers  y.  Goodchild,  342. 
Myrich  y.  Downer,  92,  93. 

Nagle  V.  Mullison,  104,  600. 

Nash  y.  Mosher,  386,  468,  547,  568,  569. 

Nash  y.  Primm,  36. 

Nason  agst.  Sewall,  302. 

Naylor  y.  Dennie,  419. 

Neate  y.  Harding,  395. 

Neely  y.  McCormick,  534, 

Neflfv.  Thompson,  382,  549,550. 

Nelson  v.  Bondurant,  186. 

Nelson  y.  Brodhack,  212. 

Nelson  v.  Burt,  586. 

Nelson  y.  Chernll,  608. 

Nensorn  y.  Anderson,  34. 

Nestor  y.  Newcome,  83, 


TABLE    OF    CASES   CITED. 


XXVll 


Nettleton  v.  Sikes,  160. 

Newbould  v.  Coultman,  325. 

Newcomb  v.  Ramer,  588. 

Newhall  v.  Dunlap,  547. 

Newman  v.  Bennett,  182,  186. 

Newman  v.  Tiernan,  320. 

New  Orleans  &c.  R.  R.  Co.  v.  Allbritton, 

246, 248. 
New  Orleans  &c.  R.  R.  Co.  v.  Statliam,  253. 
Newton  v.  Adams,  420. 
Newton  v.  Boodle,  345. 
Newton  v.  Harland,  150. 
Nicliol's  Case,  124. 
Nichols  V.  Thomas,  299,  302,  440. 
Nichols  V.  Walker  and  Carter,  430. 
Nickleson  v.  Stiyker,  181. 
Nicklin  v.  Williams,  12. 
Nicolls  V.  Ingersoll,  268. 
Nightingale  v.  Scannell,  G33,  646. 
Niver  v.  Niver,  588. 
Noble  V.  Holmes,  432. 
Nodin  V.  Johnson,  211,  212. 
Nolton  V.  Moses,  260. 
Northern  R.  R.  Co.  v.  Page,  171,  174. 
Northrup  agst.  Brush  &  Isaacs,  203. 
Norton  v.  Nye,  476. 
Nossaman  v.  Rickert,  105. 
Nowlen  v.  Colt,  563. 
Noyes  v.  Ward,  248. 
Nye  V.  Smith,  492. 

Oakes  v.  Wood,  213. 
Oakley  v.  Davis,  338, 
Oakley  v.  Van  Horn,  78. 
Obier  v.  Neal,  133. 
O'Brien  v.  Bround,  66. 
Ockington  v.  Richey,  388. 
Odiorne  v.  Colley,  507. 
Ogden  V.  Gibbons,  91. 
Ogle  V.  Barnes,  32. 
O'Hara  v.  King,  154. 
Okley  V.  Watts,  382. 
O'Leary  v.  Rowan,  129,  246. 
Oliet  V.  Bessey,  316. 
Oliver  v.  Phelps,  606. 
Orange  v.  Berry,  81. 
Ordway  v.  Ferrin,  465,  505. 
Orser  v.  Storms,  520. 
Osborne  v.  Rogers,  81. 
Osgood  v.  B^ake,  498,  499,  504. 
Osgood  V.  Welch,  303,  305. 
Osterhout  v.  Roberts,  601. 
Otis  V.  Jones,  401,  633,  636. 
Otis  V.  Sill,  541. 
Otis  V.  Wood,  544. 
Ously  V.  Hardin,  63,  104. 
Outcalt  V.  Darling.  87,  507,  511. 
Outlaw  V.  Davis,  392. 
Owens  V.  Derby,  111. 
Oystead  v.  Shed,  26. 


Packard  v.  Packard,  5. 
Page  V.  De  Puy,  477. 
Page  V.  Freeman,  62. 
Page  V.  Mitchell,  351. 
Paige  V.  Smith,  84,  130. 
Palmer  v.  Allen,  326. 
Palmer  v.  Skillinger,  224. 
Pangburn  v.  Partridge,  381. 
Parish  v.  Wilhelm,  448. 
Parker  v.  Bailey,  182. 
Parker  v.  Bidwell,  268. 
Parker  v.  Hall,  381. 
Parker  v.  Kendrick,  515. 
Parker  y.  Patrick,  567. 
Parker  v.  Pattee,  475. 
Parker  v.  Redfield,  378. 
Parker  v.  Smith,  429. 
Parker  v.  Tirrell,416. 
Parker  v.  Walrod,  428,  434, 439, 457,  626. 
Parkerson  v.  Wightman,  391. 
Parkhurst  v.  Pearsons,  273. 
Parmlee  v,  Leonard,  444. 
Parsons  v.  Brown,  227. 
Parsons  v.  Camp,  375. 
Parsons  v.  Dickinson,  389,  526. 
Parsons  v.  Harper,  105,  351. 
Parsons  v.  Lloyd,  304,  309,  391. 
Parsons  v.  Monteath,  162. 
Parsons  v.  Webb,  569. 
Pasley  v.  Freeman,  287. 
Passenger  R.  R.  Co.  v.  Young,  162. 
Pastorius  v.  Fisher,  252. 
Patchen  v.  Wilson,  532. 
Patcher  v.  Sprague,  609. 
Patrick  v.  Greenway,  12. 
Patten  v  Gumey,  607. 
Patten  v.  Wilson,  37, 
Patterson  v.  Perry,  626. 
Patterson  v.  Prior,  315. 
Paul  V.  Hayford,  537. 
Paul  V.  Slason,  469. 
Paxton  V.  Steckel,  462. 
Payson  v.  Hall,  473. 
Payson  v.  AVhitcomb,  29. 
Peabody  v.  Mmot,  261. 
Peak  V.  Lemon,  39,  40,  399. 
Pearce  v.  Lodge,  615. 
Pearce  v.  Torrence,  500. 
Pearcy  v.  Walter,  83. 
Pease  v.  Whitney,  329. 
Peat  V.  Utterton,  346. 
Peck  V.  Batchelder,  371, 
Peck  v..  Smith,  36. 
Peddell  v.  Rutter,  389. 
Pedley  v.  Davis,  325. 
Peeler  v.  Stebbins,  473. 
Pendleton  v.  Davis,  241,  247. 
Penn  v.  Ward,  217,  236. 
Pennsylvania  &c.  Canal  Co.  v.  Graham^ 
248. 


XXVlll 


TABLE    OF    CASES    CITED. 


Penton  v.  Robart,  374,  379. 

People  V.  Abbott,  243. 

People  V.  Bransby,  134. 

People  V.  Carpenter,  190. 

People  V.  Gonl.  Sess.  of  Genesee,  258. 

People  V.  Hays,  124. 

People  V.  Hubbard,  141. 

People  V.  Jackson,  243. 

People  V.  Schuyler,  463,  490. 

People  V.  Warren,  432. 

People  V.  White,  56. 

People  V.  Willett,  383. 

People  V.  Winters,  189. 

Percival  v.  Hickev,  15,  35,  199. 

Percival  v.  JoDes,'57,  390. 

Percival  v.  Stamp,  295,  435. 

Percy  v.  Clary,  28. 

Perine  v.  Dunn,  38. 

Perkins  v.  N.  Y.  Cent.  R.  R.  Co.,  162. 

Perkins  v.  Proctor,  59. 

Perkins  v.  Smith,  50. 

Perkins  v.  Vaughan,  847. 

Perkins  v.  Weston,  513,  531. 

Perrin  v.  Claflin,  393. 

Perrine  v.  Blanchard,  255. 

Perry  v.  Buss,  329,  342. 

Perry  v.  Carr,  377. 

Perry  v.  Chandler,  539,  635. 

Perry  v.  Perry,  189. 

Peters  v.  Stanway,  284. 

Petrie  v.  Lamont,  54. 

Pettengill  v.  Bartlett,  459. 

Peverly  v.  Sayles,  415. 

Peyton  v.  Rogers,  221. 

Pfeiffer  v.  Grossman,  33. 

Phares  v.  Stewart,  19. 

Phila.  &  Reading  R.  R.  Co.  v.  Derbv, 

50,  165. 
Phila.  &  Reading  R.  R.   Co.  v.  Hum- 

mell,  5. 
Philbrick  v.  Foster,  217. 
Philips  V.  Biron,  304. 
Phillips  V.  Bacon,  585. 
Phillios  V.  Cook,  422. 
Phillips  V.  Hall,  382,  463,  590. 
Phillips  V.  Howgate.  221. 
Phillips  V.  Kellv,  236,  241,  257. 
Phillips  V.  Kenf,  110. 
Phillips  V.  Trull,  268. 
Phillips  V.  Willard,  522. 
Phillips  V.  Wood,  273. 
Pickard  v.  Collins,  18. 
Pickering  v.  Coleman,  508. 
Pickering  v.  Pickering,  607. 
Pickering  v.  Trust,  406. 
Pier  V.  Fmch,  171,  224. 
Pierce  v.  Benjamin,  473,  504,  505,  632, 

635,641. 
Pierce  v.  Chipman,  574,  579. 
Pierce  v.  Hicks.  152. 


Pierce  v.  Hoffman,  229,  583. 

Pierce  v.  Pickens,  78,  92. 

Pierce  v.  Van  Dyke,  381,  569. 

Pierpont  v.  Shapland,  90. 

Piggott  V.  Kemp,  216. 

Pike  V.  Dilling,  251. 

Pike  V.  Hanson,  312,  313. 

Pillow  V.  Bushnell,  190. 

Pilsbury  v.  Hubbard,  533. 

Pitford  V.  Armstrong,  140. 

Pitt  V.  Shew,  588. 

Pitts  V.  Gaince,  554. 

Pitts  V.  Meller,  39. 

Plate  V.  N.  Y.  Cent.  R.  R.  Co.,  103. 

Piatt  V.  Bryant,  365. 

Piatt  V.  Miles,  328. 

Playi'air  v.  Musgrove,  464. 

Pleasants  v.  Heard,  262. 

Plumb  V.  Ives,  618. 

Plumer  v.  Plumer,  377. 

Plummer  v.  Dennett,  308. 

Plummer  v.  Webb,  187. 

Pocock  V.  Moore,  314. 

Poinsett  v.  Tavlor,  491. 

Polkinhorn  v.  Wright,  140,  224. 

Pollard  V.  Otter,  llO. 

Pollen  V.  Brewer,  150. 

Pomeroy  v.  Smith,  536. 

Pond  V.  Leman,  490. 

Ponder  v.  Moseley,  450. 

Poole  V.  Svmonds,  547. 

Poole's  Case,  374. 

Poor  V.  Taggart,  317,  318,  337. 

Porter  v.  N.  Y.  Cent.  R.  R.  Co.,  176. 

Porter  v.  Purdy.  432. 

Porter  V.  Seiler,  245,  252. 

Post  V.  Munn,  34. 

Potter  V.  Hall,  417. 

Potter  V.  Mather,  576. 

Potter  V.  Washburn,  507,  577. 

Poucher  v.  HoUev,  296. 

Poulk  V.  Slocum.'  57,  329. 

Poulton  V.  Lend.  &  S,  Western  R.  R. 

Co.,  44,  163. 
Powell  V.  Bagg,  92. 
Powell  V.  Hodgetts,  346. 
Powell  V.  Monson,  373. 
Powers  V.  David,  110. 
Powers  V.  Dennison,  370,  380. 
Powers  V.  Russell,  127. 
Powers  V.  Wilson,  296. 
Pozzoni  V.  Henderson,  22,  646. 
Pratt  V.  Battels,  640. 
Pratt  V.  Bunker,  51. 
Pratt  V.  Farrar,  464. 
Pratt  V.  Hill,  323. 
Pratt  V.  Pratt,  610. 
Prell  V.  McDonald,  293. 
Prentice  v.  Harrison,  340. 
Prentiss  v.  Shaw,  237,  349. 


TABLE    OF    CASES   CITED. 


XXIX 


Prescott  V.  Bartlett,  361. 

Preston  v.  Briggs,  374. 

Preston  v.  Leighton,  541. 

Prewitt  V.  Clayton,  34. 

Price  V.  Graham,  274. 

Price  V.  Helyar,  381. 

Price  V.  Seeley,  268,  284,  334. 

Price  V.  Severne,  354. 

Prichard  v.  Campbell,  94,  115. 

Prince  v.  Case,  378. 

Prince  v.  Flynn,  393. 

Pritchet  v.  Boevy,  353. 

Props,  of  Kennebec  v.  Boulton,  107. 

Prosser  v.  Secor,  272. 

Pryce  v.  Foulkes,  114. 

Pulver  V.  Harris,  229. 

Purple  V.  Hudson  River  R.  R.,  37. 

Purrington  v.  Loring,  465,  480,  627. 

Puryear  v.  Thompson,  50. 

Putnam  v.  Clark,  420. 

Putnam  v.  Man,  115,  346,  629. 

Putnam  v.  Wyley,  513,  550. 

Pyle  V.  Pennock,  373. 

Queen  v.  Read,  124. 
Queen  v.  Soley,  36. 
Quick  V.  Staines,  534. 

Railroad  Co.  v.  Hanning,  178. 

Ramsden  v.  Boston  &c.  R.  R.  Co.,  165. 

Randall  v.  Rich,  29. 

Ranger's  Case,  33. 

Rankin  v.  De  Medina,  340. 

Ransom  v.  Wetmore,  586. 

Rappelyea  v.  Hulse,  190. 

Ratcliffe  v.  Burton,  328. 

Ratliflfv.  Huntley,  619. 

Rawlins  v.  Rounds,  516. 

Ray  V.  Birdseye,  423. 

Ray  V.  Harcourt,  421. 

Read  v.  Burley,  410. 

Read  v.  Coker,  122. 

Reader  v.  Moody,  368. 

Redington  v.  Chase,  565. 

Redman  v.  Hendricks,  544. 

Reece  v.  Griffiths,  342. 

Reece  v.  Taylor,  88,  129,  217,  224,  285. 

Reed  v.  Conway,  428. 

Reed  v.  Davis,  250. 

Reed  v.  Shepherdson,  460. 

Reed  v.  Stoney,  632. 

Reeder  v.  Purdy,  251. 

Reese  v.  Bolton,  218,  230. 

Reg.  V.  Case,  124. 

Reg.  V.  Crowan,  322. 

Reg.  V.  Johnson,  121. 

Reg.  V.  Light,  292. 

Reg.  V.  Lundie,  293. 

Reg.  V.  Mann,  293. 

Reg.  V.  Martin,  121. 


Reg.  V.  Stockton,  322. 

Reg.  V.  Tooley,  291. 

Reg.  V.  Totness,  322. 

Reg.  V.  Wheeler,  370. 

Reinmiller  v.  Skidmore,  391. 

Relyea  v.  Beaver,  92. 

Rembert  v.  Kelly,  57. 

Remington  v.  Cady,  458. 

Renaudet  v.  Crocken,  77. 

Reuck  v.  McGregor,  269,  351. 

Rex  v.  Baker,  33. 

Rex  V.  Biraie,  322. 

Rex  V.  Fielding,  258. 

Rex  V.  Harvey,  253. 

Rex  V.  Newman,  299. 

Rex  V.  Sparrow,  258.  . 

Rex  V.  Storr,  33. 

Rex  V.  Topham,  17. 

Rex  V.  Woodiall,  17. 

Reynolds  v.  Church,  327. 

Reynolds  v.  Corp,  278,  295. 

Reynolds  v.  Moore,  502. 

Reynolds  v.  Shuler,  374, 

Rhine  v.  Montgomeiy,  212. 

Rhodes  v.  Bunch,  238. 

Rhodes  v.  Roberts,  85. 

Rice  V.  Chase,  447. 

Rice  V.  Courtis,  425,  574. 

Rice  V.  Ferris,  373, 

Rice  V.  Holleubeck,  635. 

Rice  V.  Stone,  37. 

Rice  V.  The  Town  of  Montpelier,  5. 

Rice  V.  Wadsworth,  504. 

Rich  V.  Rich,  612. 

Richards  v.  Symons,  405,  632. 

Richards  v.  Turner,  346,  347. 

Richardson  v.  Boright,  547. 

Richardson  v.  Duncan,  286. 

Richardson  v.  Eastman,  588. 

Richardson  v.  Emerson,  67. 

Richardson  v.  Hall,  013. 

Richardson  v.  Mellish,  102. 

Ricker  v.  Freeman,  19. 

Ricker  v.  Kelly,  378. 

Ricketts  v.  Salwey,  91. 

Riddel  v.  Pakemau,  303. 

Riddle  v.  Brown,  135. 

Riddle  v.  Props,  of  Merrimack  Locks  & 

Canal,  53. 
Ridout  V.  Burton,  521. 
Rigg  V.  Lonsdale,  356. 
Rigney  v.  Smith,    366. 
Rinchey  v.  Stryker,  571,  626. 
Ring  V.  Grout,  500,  502. 
Rising  V.  Granger,  79,  330. 
Robert  Mary's  Case,  200. 
Roberts  v.  Mason,  105,  248,  257. 
Roberts  v.  Taylor,  213. 
Roberts  v.  Thomas,  447. 
Roberts  v.  Wentworth,  514,  623. 


XXX 


TABLE    or    CASES    CITED. 


Roberts  v.  Wiffgin,  547. 

Robertson  v.  Phillips,  513. 

Robinson  v.  Austin,  515. 

Robinson  v.  Dodge,  57. 

Robinson  v.  Hawkins,  86,  634. 

Robinson  v.  Leavitt,  540. 

Robinson  v.  Mansfield,  444,  463,  639. 

Robinson  v.  Vaughton,  68. 

Robinson  v.  Wilson,  224. 

Roche  V.  Milwaukee  Gas  Co.,  3. 

Rock  wood  V.  CoUamer,  574. 

Rodney  v.  Strode,  106. 

Roe  V.  Birkenhead,  28. 

Roffey  V.  Henderson,  161. 

Rogers  v.  Arnold,  381. 

Rogers  v.  Brown,  618. 

Rogers  v.  Fales,  401,  450,  636. 

Rogers  v.  Haines,  98. 

Rogers  v.  Judd,  381. 

Rogers  v.  Mulliner,  275. 

Rogers  v.  Spence,  509. 

Rogers  v.  Waite,  129. 

Rogers  v.  Weir,  447. 

Rogers  v.  Wilson,  346. 

Romaine  v.  Norris,  617. 

Roof  V.  StaflFord,  568. 

Root  V.  Chandler,  393,  514,  520. 

Root  V.  Fren-ih,  570. 

Root  V.  Sherwood,  112. 

Roper  V.  Harper,  92. 

Rose  V.  Gallup,  365,  636 

Rose  V.  Oliver,  63. 

Rose  V.  Wilson,  285. 

Rosinski's  Case,  124. 

Ross  V.  Fuller,  25,  487. 

Ross  V.  Lapham,  244. 

Ross  V.  Lown,  614. 

Ross  V.  Philbrick,  468,  472,  479. 

Roth  V  Smith,  17,  371. 

Roth  V.  Wells,  430,  423,  433. 

Rous  V.  Hazard,  485. 

Routledge  v.  Abbot,  650. 

Rowcliffe  V.  Murray,  207. 

Rowe  V.  Bradley,  33. 

Rowe  agst.  Smith,  40. 

Rowland  v.  Veale,  301,  475,  607. 

Rowles  V.  Senior,  390. 

Rowley  v.  Bigelow,  571. 

Rowley  v.  Rice,  464,  541. 

Ruan  V.  Perry,  438. 

RuflFner  v.  Williams,  371. 

Ruggles  V.  Lesure,  160. 

Rundle  v.  Little,  636,  633. 

Russell  V.  Buchanan,  39. 

Russell  V.  Butterfield,  544,  643. 

Russell  V.  Come,  180. 

Russell  V.  Dodds,  144. 

Russell  V.  Gibbs,  421. 

Russell  V.  Hanscomb,  475. 

Russell  V.  Perry,  57. 


Russen  v.  Lucas,  314. 
Ryder  v.  Hathaway,  363,  365. 
Ryer  v.  Atwater,  344. 
RyghtmjTe  v.  Durham,  115.' 

Sabin  v.  Long,  114. 

Sage  V.  Keesecker,  84. 

Sailly  V.  Smith,  483. 

Salmon  v.  Orser,  615. 

Saltus  V.  Everett,  368,  399. 

Sampson  v.  Coy,  249. 

Sampson  v.  Henry,  151,  205,  401. 

Samuel  v.  Duke,  447. 

Samuel  v.  Payne,  370,  291. 

Sanborn  v.  Fellows,  56. 

Sanders  v.  Vance,  539. 

Sanderson  v.  Baker,  16. 

Sanderson  v.  Caldwell,  601. 

Sandford  v.  Eighth  Av.  R.  R.  Co.,  163, 

170. 
Sandibrd  v.  Nichols,  399,  302,  440. 
Sanford  v.  Dick,  498. 
Sargent  v,  Oile,  556. 
Saunder's  Case,  124. 
Saunderson  v.  Baker,  447. 
Savacool  v.  Boughton,  303,  304,  344, 438, 

431,433,502. 
Savage  v.  Smith,  626. 
Savin  V.  Long,  106. 
Sawyer  v.  Goodwin.  77. 
Sawyer  V.  Merrill,  96,116. 
Sawyer  v.  Wilson,  466,  468,  536. 
Sayre  v.  Rockford,  339. 
Scammon  v.  Scammon,  628. 
Schemerhorn  v.  Tripp,  57,  83,  96. 
Schiudel  v.  Schindel,  368,  388. 
Schlosser  v.  Fox,  240. 
Schmidt  v.  Preil,  247. 
Schuer  v.  Veeder,  34. 
Scott  V.  Bay,  35. 
Scott  V.  Dixon,  338. 
Scott  V.  Ely,  299. 
Scott  V.  Lord  Sevmour,  196. 
Scott  V.  Shepherd,  19,  21,  133. 
Scott  V.  Sherman,  429. 
Scott  V.  Watson,  41. 
Scribner  v.  Beach,  139, 141, 143, 147. 
Seaman  v.  Cuppledick,  141. 
Searls  v.  Viets,  313. 
Sears  v.  Lyons,  17. 
Sears  v.  Shafer,  631. 
Seavy  v.  Dearborn,  90,565,491. 
Second  Cong.  Soc.  v.  Howard,  383. 
Seddon  v.  futop,  99,  100. 
Sedley  v.  Sutherland,  78,  93. 
Seekins  v.  Goodale,  505. 
Seeley  v.  Bird  sail,  464. 
Selby  V.  Platts,  892. 
Selby  V.  Robinson,  114. 
Selden  v.  Cushman,  649. 


TABLE    OF    CASES    CITED. 


XXXI 


Sellers  v.  Zimmennau,  234. 
Seneca  R.  Co.  v.  The  Auburn  &  Roches- 
ter R  R  Co.,  13. 
Setzar  v.  Butler,  587. 
Severance  v.  Kimball,  286. 
Sewell  V.  Harrington,  529. 
Sexey  v.  Adkinson,  (326. 
Seymour  v.  Gi'eenvvood,  42. 
Shadgett  v.  Clipson,  299. 
Shapliigh  V.  Bellows,  38. 
Sharp  V.  Gray,  601. 
Shaw  V.  Davis,  439. 
Shaw  V.  Dodge,  295. 
Shaw  V.  Reed,  275. 
Shaw  V.  Spooner,  287. 
Sheldon  v.  Kibbe,  62,  74, 107,  202,  601. 
Sheldon  v.  Lake,  203. 
Shepardson  v.  Inhabs.  of  Colerain,  5. 
Shepherd  v.  McQuilkin,  393. 
Sheppard  v.  Fumiss,  330. 
Sheppard  v.  Shelton,  459. 
Shergold  v.  HoUowav,  306. 
Sherley  v.  Billings,  233. 
Sherman  v.  Braman,  465. 
Sherman  v.  Dutch,  643. 
Sherman  v.  Elder,  37,  591. 
Sherman  v.  Kortright,  17. 
Sherry  v.  Schuyler,  422, 633. 
Shipler  v.  Isenhower,  77. 
Shipman  v.  Clark,  437. 
Shipman  v.  Horton,  401,  405. 
Shloss  V  Cooper,  518. 
Shorland  v.  Govett,  317. 
Shorter  v.  The  People,  124,  129,  286. 
Shufelt  V.  Rowley,  181. 
Shumway  v.  Rutter.  457. 
Sikes  V.  Johnson,  193. 
Silsbury  v.  McCoon,  361,  362,  365. 
Silverman  v.  Foreman,  100,  259. 
Simmons  v.  Miliingen,  285. 
Simpson  v.  Hartopp,  410. 
Simpson  v.  Morris,  142. 
Simpson  v.  Nadeau.  486. 
Simpson  v.  Perry,  105. 
Simpson  v.  Watrus,  608,  626. 
Sims  V.  Glazener,  646. 
Sims  V.  Reed,  402. 
Sinclair  v.  Tarbox,  387,  648. 
Sisco  V.  Cheeney,  202. 
Six  Carpenters'  Case,  478,  479. 
Skiff  V.  Solace,  519,  544. 
Skinner  v.  Oettinger,  626. 
Skinner  v.  Stuart,  443. 
Slater  v.  Sherman,  251. 
Sleeper  v.  Pollard,  526. 
Sleight  V.  Ogle,  277. 
Slocum  V.  Wheeler,  59. 
Slomer  v.  People,  442. 
Smart  v.  Wolfe,  486. 
Smith  V.  Atkins,  524. 


Smith  V.  Bean,  583. 

Smith  V.  Bouchier,  59,  273,  304. 

Smith  V.  Bowker,  302,  438. 

Smith  V.  Bull.  196. 

Smith  V.  Burtis.  530. 

Smith  V.  ChMpell,  452. 

Smith  V.  Felt,  393. 

Smith  V.  Gates,  465,  466. 

Smith  V.  Goodwin,  585. 

Smith  V.  Holcomb,  248,  249. 

Smith  V.  Ishenhour,  433. 

Smith  V.  Jenks,  635. 

Smith  V.  Knowlton,  56,  ll6. 

Smith  V.  Miles,  430. 

Smith  V.  Mills,  512,  513. 

Smith  V.  Moore,  544. 

Smith  V.  Newburyport  Marine  Ins.  Co., 

483. 
Smith  V.  Orser,  461. 
Smith  V.  Overby,  248. 
Smith  V.  Rice,  56. 

Smith  V.  Shaw,  317,  390,  391. 
Smith  V.  Singleton,  263. 

Smith  V.  Slocum,  153. 

Smith  V.  Smith,  586. 

Smith  V.  State,  265. 

Smith  V.  Stokes,  459. 

Smith  V.  Tankersley,  459. 

Smith  V.  Thackerah,  9. 

Smith  V.  Wilbur,  81. 

Smithwick  v.  Ellison,  377. 

Smithwick  v.  Ward,  243,  245. 

Snedeker  v.  Warring,  371,  373,  375. 

Snelling  v.  Watrous,  287. 

Snider  v.  Croy,  603. 

Snively  v.  Fahnestock,  103. 

Snodgrass  v.  Hunt,  93. 

Snow  V.  Chandler,  72,  73. 

Snow  V.  Clark,  318. 

Snow  V.  Cowles,  12. 

Snyder  v.  Vaux,  362. 

Soames  v.  Watts,  569. 

Sodousky  v.  M'Gee,  107. 

Solomon  v.  Waas,  39,  588. 

Soper  v.  Sumner,  551. 

Southerin  v.  Mendum,  557. 

South  Royalton  Bank  v.  Suffolk  Bank, 
141. 

Southwick  V.  Estes,  50. 

Southwick  V.  Ward,  263. 

Southworth  v.  Isham,  542. 

Southworth  agst.  Packard,  201. 

Sowell  V.  Champion,  113,  623,  645. 

Spartz  V.  Lyons,  231. 

Spaulding  v.  Preston,  10,  11. 

Spencer  v.  Harrison,  96,  97. 

Spencer  v.  Williams,  73,  74. 

Spooner  v.  Fletcher,  411,  412,  446. 

Spoor  v.  Holland,  643. 

Spoor  V.  Spooner,  112,  267,  464. 


XXXll 


TABLE    OF    CASES    CITED. 


Sprague  v.  Bircliard,  391,  434. 

Sprague  v.  Ecclestoii,  'Si't. 

Spraishts  v.  Hawlev,  508. 

Squire  v.  lloUenlieck,  632,  G35,  641. 

Stacev  V.  Whitehurst,  66. 

Stafford  v.  Mercer,  384. 

Stafford's  Case,  119. 

Stallings  v.  Owens,  125. 

Stammers  v.  Yearslev,  211,  334. 

Stanley  v.  Gavlord,  384,  531,  591. 

Stante  v.  Pricket,  221. 

Stanton  V.  Hodges,  319, 420, 529, 637, 638. 

Stanton  v.  Scliell,  60. 

Stanton  v.  Seymour,  328,  330. 

Staples  V.  Smith,  513.  523. 

Starr  v.  Kent,  588. 

StaiT  V.  Scott,  322. 

State  V.  Baker,  124. 

State  V.  Bradish,  80. 

State  V.  Buchanan.  139,  141. 

State  V.  Cherry,  123. 

State  V.  Cole.  241. 

State  V.  Da\-is,  129. 

State  T.  Elliot,  142,  147,  148. 

State  V.  Foster,  435. 

State  V.  Fuller,  139. 

State  V.  Gibson,  131. 

State  V.  Guest.  304. 

State  V.  Hamilton,  308. 

State  V.  Hooker,  128. 

State  V.  Hull  &  Webb,  188. 

State  V.  Jennings.  438. 

State  V.  .lowers,  236. 

State  V.  Knotts,  23. 

State  Y.  3Ialcom,  121. 

State  V.  :Mann,434. 

State  V.  Miller,  139. 

State  V.  Moore,  143,  144,  478. 

State  V.  Morgan,  446. 

State  V.  Pearman,  382. 

State  V.  Pike.  615. 

State  V.  Rawles,  1-24,  194. 

State  V.  Richmond,  56. 

State  V.  Sims,  122. 

State  V.  Thompson.  329. 

State  V.  Vannov,  122. 

State  V.  Weed,'298,  428.  504. 

State  V.  Wheeler,  33. 

State  V.  Williams,  183. 

State  V.  Woodward,  152. 

Stearns  v.  Dillingham,  586. 

Steams  v.  Sampson,  122.  ' 

Stebbins  v.  Copper,  615. 

Steel  agst.  Fish,  428. 

Stein  V.  Valkenliuvsen,  287. 

Stephen  v.  Myers, 'l22,  124,  236. 

Stephen  v.  Smith,  167,  175. 

Stephens  v.  Ehvall,  280. 

Stephens  v.  Wider,  117. 

Stephens  v.  Wilkins,  500. 


Stephenson  v.  Clark,  515. 

Stephenson  v.  Little,  364. 

Stetlar  v.  Nellis,  239. 

Stetson  V.  Goldsmith,  390. 

Stetson  V.  Kempton,  492,  494,  502. 

Stetson  V.  Packer,  307. 

Stevens  v.  Briggs.  359. 

Stevens  v.  Somerindvke.  462,  589. 

Stewart  v.  Martin,  640,  641. 

Stewart  v.  Wallis,  89. 

Stewart  v.  Wells,  462. 

Stickney  v.  Davis,  456. 

Stief  V.  Hart,  553. 

Stiles  V.  Shumway,  515. 

Stimpson  v.  Revnold«,  437. 

St.  John  V.  St.  John's  Church,  28,  29. 

St.  Louis,  Alton  &  Chicago  R.   R.  Co. 

V.  Dalby,  1G5. 
Stockham  v.  Jones,  96. 
Stockton  v.  Frey,  248. 
Stockwell  V.  Campbell,  375. 
Stockwell  V.  :Marks,  374. 
Stoddard  agst.  Bird,  286. 
Stone  V,  Chambers,  391. 
Stone  V.  Dickinson,  74,  354. 
Stone  V.  Hooker,  30. 
Stone  V.  Knapp,  475. 
Stone  v.  Matherly,  107. 
Stone  V.  Proctor,  376. 
Stonehouse  v.  Elliott,  283,  328. 
Storer  v.  Hobbs,  63. 
Storey  v.  Robinson,  411. 
St'^rm  V.  Livingston,  568. 
Storrs  V.  City  of  Utica,  52. 
Stougliton  V.  Mott,  383,  395,  441,  473, 

475,  476,  477. 
Stoughton  V.  Taylor,  485. 
Stout  V.  Prall,  252. 
Stout  V.  Wren,  125. 
Stow  v.  Scribner,  84. 
Stowe  V.  Heywood,  289. 
Stovel  V.  Lawrence,  304. 
St.  Peter's  Church  v.  Beach,  104,  233. 
Strasburger  v.  Barber,  639. 
Stratton  v.  Xichols,  233. 
Strode  v.  Hunt,  588. 
Strohl  V.  Levan,  34,  42,  191,  192. 
Strong  v.  Adams,  524,  549. 
Strong  V.  Hobbs,  605. 
Strout  V.  Gooch,  314. 
Strutt  V.  Bovingdon,  98. 
Stults  V.  Buckelew%  89. 
Sturbridge  v.  AYinslow,  433. 
Sturdevant  v.  Gains.  76. 
Stiu-devant  v.  Murrell,  78. 
Sturgenegger  v.  Taylor,  196. 
Sturgis  V.  Warren,  544, 
Sugg  V.  Pool,  346. 
Suggs  V.  Anderson,  338. 
Sullivan  v.  Jones,  57,  58,  271,  325. 


TABLE    OF    CASES    CITED. 


XXXlll 


Sullivan  v.  Murphy,  5. 
Sunbolf  V.  Alford,  410. 
Sutliflf  V.  Gilbert,  111. 
Sutton  V.  Beach,  467. 
Sutton  T.  Moody,  357. 
Suydam  v.  Jenkins,  643. 
Suydara  v.  Keyes,  501,  502. 
Swann  v.  Broome,  295. 
Swift  agst.  Chamberlain,  432. 
Swift  V.  Moseley,  550. 
Swift  V.  Thompson,  373, 
Swigert  v.  Thomas,  535. 
Swinton  v.  Molloy,  198. 
Swire  v.  Leach,  641. 
Switzer  v.  Valentine,  190. 
Symonds  v.  Hall,  570, 

Taber  v.  Hutson,  248, 

Taft  V.  Metcalf,  23,  51,  496. 

Taggard  v.  Loring,  552. 

Taggart  v.  Packard,  540. 

Taintor  v.  Williams,  528. 

Tait  V.  Harris,  92,  346. 

Talbot  V.  Seaman,  92. 

Tallman  v.  Torek,  570. 

Talmadge  v.  Scudder,  399,  562, 568,  569 

Tancred  v.  Allgood,  450. 

Tanner  v.  Hague,  296. 

Tapfield  v.  Hillman,  541. 

Tarlton  v.  Fisher,  302. 

Tatum  V.  Morris,  399. 

Taunton  v.  Costar,  144. 

Taylor  v.  Church,  252. 

Taylor  v.  Clendening,  130. 

Taylor  v.  Cole,  144,  214,  216,  613. 

Taylor  v.  Jones,  54,  114,  455,  457,  480. 

Taylor  v.  Owen,  329, 

Taylor  v.  Seymour,  448. 

Taylor  v.  Smith,  89,  231. 

Taylor  v.  Townsend,  378,  879. 

Taylor  v.  Trask,  390. 

Taylor  v.  Whitaker,  39. 

Tefft  V.  Ashbaugh,  429. 

Tenbroeck  v.  Paige,  261. 

Terpenning  v.  Gallup,  91. 

Terwnlliger  v.  Wheeler,  530. 

Thames  Manf.  Co.  v.  Lathrop,  23,  496. 

Thames  Steamboat  Co.  v.   Housatonic 
R.  R  Co.,  43. 

Tharpe  v.  Stallwood,  533. 

Thax'ter  v.  Jones,  503. 

Thayer  v.  Willet,  626. 

Thomas  v.  Isett,  620, 

Thomas  v.  Marsh,  81,  161,  613. 

Thomas  v.  Phillips,  520, 

Thomas  v.  Powell,  350. 

Thomas  v.  Rumsey,  63. 

Thomas  v.  Russell,  350, 

Thomas  v.  Snyder,  560. 

Thomas  v.  SorrcU,  IGO. 
Voi-.  I.— C 


Thompson  v.  Blanchard,  360. 

Thompson  v.  Button,  381. 

Thompson  v.  Hamilton,  552. 

Thompson  v.  Hoskins,  79. 

Thompson  v.  Marsh,  490. 

Thompson  v.  Mumma,  236. 

Thorp  V.  Burling,  488,  518,  531. 

Thorpe  v.  Barber,  97. 

Thrall  v.  Knapp,  240. 

Thrower  v.  Vaughan,  440. 

Thurman  v.  Wild,  98. 

Thurst  V.  West,  368. 

Thurston  v.  Blanchard,  537. 

Thurtell  v.  Beaumont,  162. 

Tibbs  V.  Chase,  406. 

Tifft  V.  Culver,  104. 

Tift  V.  Tift,  41. 

Tillotson  V.  Cheetham,  104,  253. 

Tillotson  V.  Smith,  13. 

Timmons  v.  Broyles,  360. 

Timothy  v.  Simpson,  152,  195,  334,  268. 

285. 
Titley  V.  Foxall,  210. 
Tobey  v.  Webster,  379. 
Toby  V.  Reed,  614. 

Tonawanda  R.  R.  Co.  v.  Munger,  144. 
Tooker  v  Duke  of  Beaufort,  115. 
Toulmin  v.  Anderson,  115. 
Tourtellot  v.  Rosebrook,  127. 
Tower  v.  Wilson,  490. 

Towle  V.  Lovet,  533. 

Townsend  v.  Phillips,  448. 

Tracy  v.  Leland,  588. 

Tracy  v.  Williams,  59. 

Train  v.  Wellington,  4! 8,  493. 

Trask  v.  Hartford  &  New  Haven  RR..86. 

Treat  v.  Barber,  364,  456,  648. 

Trelawuey  v.  Bishop  of  Winchester,  115. 

Trevor  v.  Wall,  607. 

Tribblev.  Frame,  135. 

Trieber  v.  Blocher,  451. 

Tripp  V.  Riley,  503. 

Trout  V.  Kennedy,  559,  646. 

True  V.  Congdon,  79. 

Trull  V.  Howland,  327. 

Trustees  of  the  Village   df  Jordan  v. 
Otis,  487. 

Trye  v.  Sir  Chaloner  Ogle,  198. 

Tubbs  V.  Lynch,  67. 

Tubbs  V.  Tukey,  317. 

Tubervil  v.  Stamp,  9. 

Tufts  V.  Hayes,  447. 

TuUay  v.  Reed,  140. 

TuUidge  v.  Wade,  248,  352. 

Turner  v.  Austin,  419. 

Turner  v.  Hitchcock,  74. 

Turner  v.  Jones,  28,  29. 

Turner  v.  McCarthy,  114. 

Turner  v.  North  Beach  R.  R.  Co.,  359. 

Turpin  v.  Remy,  365. 


XXXIV 


TABLE    OF    CASES    CITED. 


Tuttle  V.  Cook,  490. 
Tuttle  V.  Hunt,  639. 
Twig!?  V.  Potts,  606. 
Twitchell  v.  Shaw,  440. 
Tyler  v.  Pomeroy,  288,  289. 
Tyson  v.  Booth,  338. 
Tyson  v.  Ewing,  34,  648. 

Ullman  v.  Barnard,  545. 
Underwood  v.  Campbell,  609. 
Union  Bank  v.  Emerson,  ;374. 
Upton  V.  Holden,  503. 
Usher  v.  Bushell,  588. 
Utley  V.  Smith,  434. 

Vail  V.  Lewis,  394. 
Van  Brunt  v.,  Sclienck,  396,  469,  470. 
Vandenburgh  v.  Hendricks,  375. 
Vandenburgli  v.  Truax,  14,  19. 
Vanderbilt  v.  Richmond  Turnpike  Co., 

44,  51,  490. 
Vanderpoel  v.  Van  Allen,  373. 
Vandeventer  v.  N.  Y.  &  New  Plaven  R. 

R.  Co.,  196. 
Van  Hoozer  v.  Cory,  541,  543. 
Van  Ness  v.  Pacard,  374. 
Van  Rensselaer  v.  Kidd,  394. 
Van  Sandan  v.  Turner,  336. 
Van  Slyck  v.  Snell,  116. 
Van  Steenburgh  v.  Kortz,  434. 
Van  Wyck  v.  Vine,  431. 
Vaughan  v.  Rhodes,  34. 
Vinal  V.  Burrill,  553. 
Vincent  v.  Cornell,  556. 
Vincent  v.  Stinehour,  3,  4,  7. 
Vine  V.  Saunders,  40. 
Vivian  v.  Jenkin,  613. 
Von  Ketler  v.  Johnson,  331. 
Von  Latham  v.  Libby,  375,  376. 
Voorhis  v.  Freeman,  373. 
Vosburgh  v.  Monk,  23,  65. 
Vosburgh  v.  Welch,  60,  391,  633. 
Vose  V.  Stickney,  449. 
Vredenburgh  v.  Hendricks,  372,  391. 

Waddell  v.  Cook,  459,  461. 

Wadleigh  v.  Jauvrin,  370,  374,  375,  586. 

Wadsworth  v.  Treat,  341,  348,  349. 

Waffle  V.  Dillenbeck,  360. 

Wagener  v.  Bell,  613. 

Wagener  v.  Bill,  39. 

Waggoner  v.  Corlew,  518. 

Wakefield  v.  Fairman,  140. 

Wakeman  v.  Lindsey,  94. 

Wakeman  v.  Robinson,  4,  137. 

Walcot  V.  Pomeroy,  513,  531,  522. 

Walden  v.  Davison,  490. 

Waldron  v.  Hanpt,  581. 

Waldron  v.  Hopper,  191. 

Wales  V.  Hart.  83. 


Walker  v.  Borland,  637. 

Walker  v.  Brown,  336. 

Walker  v.  Cochran,  497. 

Walker  v.  Farnsworth,  601. 

Walker  v.  Fitts,  151,  461. 

Walker  v.  Foxcroft,  490,  492. 

Walker  v.  Haskell,  492. 

Walker  v.  Hitchcock,  83. 

Walker  v.  Lovell,  474. 

Walker  v.  Sawyer,  382. 

Walker  v.  Sherman,  370,  586. 

Walker  v.  Wilkinson,  518. 

Walker  V.  Woolcott,  111. 

Wall  V.  Lee,  158,  159. 

Wall  V.  McNamara,  198,  289. 

Wall  V.  Osborn,  24. 

Wallace  v.  Barker,  412. 

Wallace  v.  Brown,  100. 

Walley  v.  M'Connell,  275. 

Wallis  V.  Truesdell,  388,  624. 

Wallsworth  v.  McCullough,  57,  335. 

Walrath  v.  Barton,  81. 

Walsby  v.  Oakley,  219. 

Walsh  v.  Adams,  459. 

Walsh  V.  Bishop,  106. 

Ward  V.  Eyre,  363. 

Ward  V.  Green,  302. 

Ward  V.  Henry,  641. 

Ward  V.  Macauley,  512,  513,  551. 

Ward  V.  State,  244. 

VYarden  v.  Bailej',  198. 

Ward's  Case,  126. 

Warfield  v.  Waiter,  639. 

Warner  v.  Bacon,  79. 

Warner  v.  Ostrander,  639. 

Warner  v.  Riddiford,  283. 

Warner  v.  Shed,  300. 

Warner  v.  Stockwell,  306. 

AVarren  v.  State,  122. 

Warwick  v.  Foulkes,  353. 

Washburn  v.  Hale,  201. 

Wasson  v.  Canfield,  339,  332,  347. 

Waterbury  agst.  Lockwood,  473. 

Waterbury  agst.  WesLervelt,  402. 

Waterman  v.  Hall,  33. 

Waters  v.  Daines,  503. 

Watkins  v.  Gaston,  235,  238. 

Watrous  v.  Steel,  153. 

Watry  v.  Ferber,  242. 

Watson  V.  Bodell,  316. 

Watson  V.  Christie,  240,  262. 

Watson  V.  Watson,  328,  433. 

Weathrell  v  Howard,  214. 

Weaver  v.  Bush,  140,  141,  147. 

Weaver  v.  Ward,  3. 

Webb  V.  Allen,  110. 

Webb  V.  Beavan,  17. 

Webb  V.  Bulger,  261. 

Webb  V.  Paternoster,  38,  381. 

Webb  V.  Portland  Manf.  Co.,  13. 


TABLE    OF    CASES    CITED. 


XXXV 


Webb  V.  Steele,  94. 

Webber  v.  Gray,  430,  432. 

Webber  v.  Kenny,  354. 

Webber  v.  Liversuch,  317. 

Weber  v.  Ferris,  400. 

Webster  v.  Watts,''156,  218. 

Weed  V.  The  Panama  R.  R.  Co..  42. 

Weekly  v.  Persons,  231. 

Weet    V.    Trustees    of    the   Village    of 

Brockport,  52. 
Wehleagst.  Butler,  85,  391,  396.  407,  633. 
Wehle  V.  Haviland,  633. 
Weitzel  v.  Marr,  515. 
Welch  V.  Clark,  458,  562. 
Welch  V.  Durand,  7. 
Welch  V.  Whittemore,  537,  544. 
Weld  V.  Oliver,  458,  639. 
Weller  v.  Goyton,  94. 
Wellington  v.  Drew,  385. 
Wellington  v.  Sedgwick,  457, 
Wells  V.  Banister,  378. 
Wells  V.  Battelle,  502. 
Wells  V.  Howell,  33. 
Wells  V.  Jackson,  298. 
Wells  V.  The  Steam  Nav.  Co..  162. 
Welsh  V.  Cooper,  23. 
Wentworth  v.  Bullen,  327. 
West  V.  Baxendale,  270,  348,  350. 
West  V.  Bolton,  403. 
West  V.  Brock,  261. 
West  V.  Nibl^s,  613. 
West  V.  Rousseau,  223. 
West  V.  Shocklv,  392. 
West  V.  Smallwood,  275,  2S3,  :S?2. 
Westervelt  v.  Pinckney,  420 
Westfall  V:  Preston,  495,  498. 
West  River  Bank  v.  Gorham,  411. 
Westwood  V.  Cov»'ne,  79,  330. 
Wetherbee  v.  Ellison,  376. 
Wetmore  v.  Campbell,  463. 
Wetzell  v.  Waters,  397. 
Whatley  v.  Murrell,  248. 
Wheat  V.  Croom,  84. 
Wheat  V.  Lowe,  247. 
Wheeler  v.  Lampman,  629. 
Wheeler  v.  McFarland,  462. 
Wheeler  v.  Moore,  2. 
Wheeler  v.  Whiting,  141,  282,  28:5.  383. 
Wheelock  v.  Archer,  26. 
Wheelwright  v.  Depeyster,  399. 
Whelan  v.  Whelan,  631. 
Whitaker  v.  English,  63. 
Whitcomb  v.  Cook,  54,  273,  SI"). 
Whitcomb  v.  Tower,  523. 
White  V.  x\rnclt,  374. 
White  v.  Brooks,  586. 
White  V.  Chadbonrn(!,  583. 
White  V.  IIill,  93,  96. 
White  V.  Morris,  440. 
White  V.  Morton,  459. 


White  V.  Mosely,  85. 

White  V.  Phelps,  460. 

White  V.  Philbrick,  98,  601. 

White  V.  Webb,  539,  642. 

Whitehouse  v.  Atkinson,  646, 

White  Water  Valley  Canal  Co.  v.  Dow. 

618. 
Whitfield  V.  Johnston,  434. 
Whiting  V.  Brastow,  374. 
Whiting  V.  Johnson,  590. 
Whitmore  v.  Bowman,  588,  616. 
Whitmore  v.  Delano,  38,  116. 
Whitney  v.  Farwell,  445. 
Whitney  v.  Hitchcock,  256,  257. 
Whitney  v.  Ladd,  402. 
Whitney  v.  Lynde,  577. 
Whitney  v.  Whitney,  453. 
Whiten  V.  Chicago  &c.  R.  R.  Co.,  55,  201. 
Whittemore  v.  Gibbs,  557. 
Whittier  v.  Varney,  621. 
Wickliffe  v.  Saunders,  390. 
Wies  agst.  Fanning,  85. 
Wiffln  V.  Kincard,  1 25. 
Wiggin  V.  CofEn,  253. 
Wilbraham  v.  Snow,  79,  511. 
Wilcox  V.  Sherwin,  52,  503,  605. 
Wilcox  V.  Smith,  488.  502. 
Wilderman  v.  Sandusky,  111. 
Wildman  v.  Norton,  609. 
Wilds  V.  Blanchard,  409. 
Wiley  V.  Yale,  75. 
Wilford  v.  Grant,  42. 
Wilkes  V.  Dinsman,  184. 
Wilkes  V.  Jackson,  63. 
Wilkins  v.  Gilmore,  104. 
Willard  v.  Baker,  32. 
Willard  v.  Kimball,  437. 
Willard  v.  Lull,  578. 
Willard  v.  Rice,  362,  365. 
Williams  v.  Bacon,  287, 
Williams  v.  Brace,  23,  57. 
Williams  v.  Crosswell,  280. 
Williams  v.  Currie,  117. 
Williams  v.  Gaines,  230. 
Williams  v.  Ives,  105,  475,  627,  644. 
Williams  v.  Ivey,  329, 
Williams  v,  Jones,  125,  312. 
Williams  agst.  Levris,  520. 
Williams  v.  Miller,  448. 
Williams  v.  Millington,  554. 
Williams  v.  Mostyn,  13. 
Williams  v.  Powell,  464. 
Williams  v.  Price,  87. 
Williams  v.  Sheldon,  65. 
Williams  v.  Smith,  304 
Williamson  v,  Dow,  505, 
Williamson  v,  Fischer,  66. 
Willis  V.  Forrest,  238. 
Wills  V.  Whittier,  322. 
Wilmarth  v.  Burt,  302,  307,  440. 


XXXVl 


TABLE    OF    CASES    CITED. 


Wilson  V.  Barker,  28,  67,  88G,  511,  567. 

Wilson  V.  Franklin.  26. 

Wilson  V.  Gamble,  79. 

Wilson  V.  Hooper,  401,  575. 

Wilson  V.  Johnson,  589. 

Wilson  V.  Mnckcnzie,  199. 

Wilson  V.  Miickreth,  36,  513. 

Wilson  V.  Martin,  551,  5G1. 

Wilson  V.  The  Mayor  &c.,.184. 

Wilson  V.  McElroy,  637. 

Wilson  V.  Middleton.  257. 

Wilson  v.  Mower,  94. 

Wilson  V.  Seavey,  477. 

Wilson  V.  Smith,  35. 

Wilson  V.  Tummon,  28,  393. 

Wilson  V.  Wentworth,  382. 

Wilson  V.  Wilson,  35,  542. 

Wilson  V.  Young,  237,  238. 

Wilton  Manf.  Co.  v.  Butler,  432,  438, 

439,  468. 
Wingate  v.  Smith,  362. 
Winship  v.  Ncale,  514. 
Winslow  V.  Merchants' Ins.  Co.,  371,  372. 
Winstow's  case,  370. 
Winter  v.  Peterson,  252. 
Winterburn  y.  Brooks,  216. 
Wintei-mute  v.  Light,  374. 
Wintringham  v.  Lafoy,  12,  382,  462. 
Wise  V.  Hodsoll,  209. 
Wise  V.  Withers,  433,  501. 
Withers  v.  Henley,  317. 

Withers  v.  Parker,  310. 

Witherspoon  v.  Woody,  631. 

Withington  v.  Eveleth,  496. 

Wolcott  T.  Root,  482. 

Wolff  V.  C«hen,  224,  241,  257. 

Wood  V.  Kinsman,  308. 

Wood  V.  Lane,  313. 

Wood  V.  Leadbitter,  161. 

Wood  V.  Morcwood,  618. 

Woodall  V.  McMillan,  843. 

Woodbridge  v.  Conner,  390,  624. 

Woodham'v.  Gelston,  638. 

Wooding  V.  Oxley,  282. 

Woodman  v.  Howell,  152. 


Woodman  v.  Tufts,  12. 

Woodruff  V.  Halsey,  408,  513,  535,  53^ 

586. 
Woodruff  V.  Woodruff,  122. 
Woods  V.  Hanks,  586. 
Woods  V.  Davis,  309. 
Woodward  v.  Gates,  427. 
Woodwaid  v.  Walton,  180,  182. 
Woolen  V.  Wright,  27,  393. 
Wooley  V.  Carter,  636. 
Wooley  V.  Edson,  608. 
Wooisey  v.  Seely,  570. 
Wooster  agst.  Parsons,  302. 
Wort  V.  Jenkins,  104. 
Worth  V.  Terrington,  88,  89,  337. 
Wright  V.  Court,  124. 
Wright  V.  Lathrop,  62. 
Wright  V.  The  State,  515. 
Wright  V.  Wilcox,  44. 
Wright  V.  Wilson.  266. 
Wright  T.  Woolen,  511. 
Wylie  V.  Smithmerman,  647. 
Wyraan  v.  Dorr,  548. 
Wynne  v.  Anderson,  62.  94. 

Yale  V.  Dederer,  190. 
Yale  V.  Saunders,  640. 
Yale  V.  Seely,  378. 
Yates  V.  Camsew,  569. 
Yates  V.  Joyce,  530. 
Yates  V.  Lansing,  320. 
Yates  v.  Wormell,  457. 
Yost  V.  Ditch.  231. 
Young  V.  Edwards,  293. 
Young  V.  Higliland,  219. 
Young  V.  Hitchen,  357. 
Young  V.  Hyde,  496. 
Young  V.  Mertens,  636. 
Young  V.  Rummell,  85. 
Young  V.  Spencer,  13. 
Young  V.  Walker,  445. 

Zimmerman  v.  Chrisman,  200. 
Zimmerman  v.  Hekar,  617. 


BOOK  I. 

TRESPASS    IN    GENEEAL. 


CHAPTER    I. 

DEFINITION    AND    NATURE   OF   TRESPASS. 

1.  Trespass  defined. 

2.  Acts  which  may  or  may  not  constitute  trespass, 

3.  Infringement  of  right  without  specific  injury. 

4.  Motive  or  intention. 

5.  Liability  for  consequences  of  wrongful  act. 

6.  Inciting  or  aiding  the  commission  of  trespass. 

7.  Ratification  and  adoption  of  wrongful  act. 

8.  Indemnity  of  innocent  wrong-doer. 

1.  Trespass  defined. 

§  1.  Trespass,  in  its  broader  sense,  signifies  the  voluntary 
transgression  of  any  divine  law  or  command  ; — the  violation 
of  any  rule  of  rectitude  to  the  injury  of  another.  Literally, 
it  means  to  pass  beyond ;  hence,  to  enter  unlawfully  upon 
the  land  of  another.^  In  its  usual  legal  acceptation,  it  is 
a  wrong  done  with  force,  to  the  absolute  rights  of  personal 
liberty  and  security,  and  to  those  of  property  corporeal.  It 
sometimes  includes  injuries  to  the  relative  rights  of  persons ; 
as  beating,  wounding,  or  imprisoning  a  wife  or  servant.^ 

§  2.  Trespass  is  also  the  name  of  an  action  for  the  recov- 

^ery  of  damages  for  a  wrong  committed  with  immediate  force, 

as  distinguished  from  trespass  on  the  case  which  lies  where 

the  injury  is  consequential,  and  not  committed  with  direct 

'  Webster's  Diet.  ^  Bouv.  L.  Diet. 

Vol.  I.— 1 


2  DEFINITION   AND  NATURE   OF   TRESPASS.  §§  3,  4. 

force.^  *     The  force  may  he  actual,  as  by  an  attack ;  or  im- 
plied, as  by  a  wrongful,  tbougli  peaceable  entry  on  land.^ 

2.  Acts  which  may  or  may  not  constitute  trespass. 

§  3.  Mere  words  cannot  constitute  a  trespass.^  But 
words  or  acts  of  provocation  may  have  the  effect  of  a  breach 
of  the  peace  when  they  tend  immediately  thereto.^  And 
proof  of  the  language  of  the  defendant,  while  committing  a 
trespass,  is  proper  to  qualify  the  act,  and  to  show  with  what 
spirit  it  is  done.^  We  shall  hereafter  have  occasion  to  show 
the  important  bearing  which  words  often  have  in  determining 
the  character  of  the  alleged  wrong.  A  single  example  must 
suffice  for  the  present.  In  Merest  v.  Harvey,^  the  defendant, 
in  trespassing  upon  the  plaintiff's  land,  used  very  intem- 
perate language,  threatening,  in  his  capacity  of  magistrate,  to 
commit  the  plaintiff,  and  defying  him  to  bring  an  action. 
The  witnesses  described  his  conduct  as  being  that  of  a 
drunken  or  insane  person.  The  plaintiff  behaved  with  cool- 
ness and  propriety.  A  verdict  having  been  found  for  the 
plaintiff  for  500/.,  Avhich  was  the  Avhole  amount  of  damages 
claimed  in  the  declaration,  the  court  refused,  on  motion,  to 
set  it  aside  for  excess. 

§  4.  If  a  person  entirely  deprived  of  the  command  of 
his  actions  causes  an  injuiy,  he  is  not  accountable  therefor. 
As  if,  from  motives  of  self  preservation,  he  should  jump  out 
of  the  window  of  a  house  on  fire  and  fall  against  another  ;  or 
if,  in  endeavoring  to  save  another  from  inevitable  destruction, 
he  should  run  against  some  one ;  or  if  he  were  deprived  of  all 
control  over  his  will  by  idiocy  or  insanity,  and  should  injure 


'  IbkL ;  Dale  Manf.  Co.  v.  Grant,  84  N.  J.  Ul 

"  Bnoom's  Com.  on  Com.  L.  4th  cd.  p.  135. 

'  Wbeeler  v.  Moore,  W^rigbt's  R.  408  ;  post,  ^  145. 

"  Boyleston  v.  Kerr,  2  Daly,  220. 

'  Adaxns  v.  Rivers,  11  Barb.  390.  "  5  Taunt.  442. 

*  In  Delaware,  the  revised  code,  379,  abolishes  the  common  law  distinction 
between  trespass  and  trespass  on  the  case,  in  respect  to  the  question  whether  the 
injury  complained  of  is  immediate  or  consequential  (iiailey  v.  Wiggins,  1  Hous- 
ton, 299),     See  pest.  §  71,  note. 


§^  5,  G.      ACTS   WHICH   JIAY   OR   MAY   NOT   CONSTITUTR.  3 

another,  it  would  be  deemed  an  involuntary  trespass,  for 
w^hich  no  recovery  could  be  had.^  But  where  it  is  claimed 
that  there  was  a  necessity  for  an  act  wdiich  would  otherwise 
be  illegal,  it  must,  of  course,  be  proved  that  such  necessity 
existed  at  the  time,  and  that  every  possible  care  ^vas  taken 
to  avoid  the  doing  of  injury.^ 

§  5,  The  grounds  of  exemption  from  liability  are  not 
confined  to  the  extreme  cases  we  have  mentioned;  but  are 
equally  applicable  to  every  instance  of  unavoidable  accident 
in  the  prosecution  of  a  lawful  act,  where  no  blame  is  im- 
putable to  the  person  doing  the  injury.^  In  Goodman  v. 
Taylor,*  which  w^as  an  action  of  trespass  for  an  injury  done 
to  a  horse  by  a  pony  and  chaise  running  against  it,  it  was 
proved,  on  the  part  of  the  defendant,  that  his  w^ife  was  hold- 
ing the  pony  by  the  bridle,  when  a  punch  and  judy  show 
came  by  and  frightened  the  pony,  which  ran  off  with  the 
chaise.  It  was  held  that,  if  true,  this  was  a  good  defense. 
The  same  was  held  in  an  action  by  a  gas  company,  for  injury 
to  tbeir  lamp-posts  set  up  along  the  streets  of  a  city ;  it 
being  j^roved  that  the  defendant  was  driving  with  proper 
care,  and  that  the  injury  was  caused  by  the  crowded,  slip- 
pery, and  uneven  condition  of  the  street.^  *  ^ 

§  6.  Unavoidable   accident,  in   legal   phraseology,   does 


'  Vincent  v.  Sfcinehour,  7  Vt.  63;  l)ut  see  Gates  v.  Miles,  3  Conn.  64. 
-  Burton  v.  M'Clellan,  2  Scam.  434. 

'  Com.  Dig  Battery,  A ;  Davis  v.  Saunders,  2  Chit.  R.  639  ;  Brown  v.  Ken- 
dall, 6  Cush.  292. 

''  5  Car.  &  P.  410;  and  see  Gibbons  v.  Pepper,  4  Mod.  405. 

*  Roche  V.  Milwaukee  Gas  Co.  5  Wis.  55. 

*  In  Roche  v.  Milwaukee  Gas  Co.,  supra,  the  court  alluded  to  anotlier  circum- 
stance in  favor  of  the  defendant,  which  was,  that  he  was  a  mere  passenp^er  in  the 
waj^on,  havin.LC  no  interest  whatever  in  it,  or  in  the  horse,  and  neither  aiding  nor 
in  any  manner  consenting  to  the  occirrv^'uce. 

In  Weaver  v.  Ward,  Hob.  13t,  which  w  is  an  action  for  assault  ami  battery, 
the  defendant  pleaded  that  he  was  a  soldier,  that  he  and  the  plaintiff  were 
under  one  captain,  and  that  in  must'jring  be  dischnrged  his  gun,  \\\\\chcns>fa,lit'')\ 
et  per  iiifortu Ilium:,  et  routni  rohinfdtiiu  kkoih,  did  liurt  the  plaintiff.  Ir  wa;  held 
that  if  the  defendant  had  plead-d  tlnit  he;  coukl  not  have  avoided  it,  or  that  the 
plaintiff  had  ran  across  the  gun  when  it  was  discharged,  or  had  set  forth  the  cir- 
cumstances, so  that  it  might  appear  to  the  court  to  be  inevitable,  such  a  plea 
would  have  been  a  sufficient  justification. 


4  DEFINITION   AND   NATURE   OF   TRESPASS.  §  6. 

not  mean  an  accident  winch  it  was  physically  impossible,  in 
the  natnre  of  thinos,  for  the  defendant  to  have  prevented. 
All  that  is  meant  is,  that  it  was  not  occasioned  in  any  degree, 
either  remotely  or  dii-ectly,  by  the  want  of  such  care  or  skill 
as  the  law  holds  every  man  bonnd  to  exercise.^  In  Vincent 
V.  Stinehoiu',^  which  was  an  action  for  trespass  for  driving 
against  and  over  the  plaintiff  with  a  horse  and  carriage,  the 
following  instructions  to  the  jury,  in  the  court  below,  were 
held  correct :  "  Every  man  in  pursuing  his  lawful  business, 
must  use  the  prudence  of  the  most  prudent  kind  of  men  ;  and 
if  there  Avas  any  want  of  the  exercise  of  this  prudence  on  the 
part  of  the  defendant,  either  in  using  an  unsafe  horse,  or  in 
■the  manner  of  driving  and  using  the  horse,  whereby  the 
event  happened,  the  defendant  must  be  answerable,  and  the 
jury  w411  assess  the  damages ;  but  if  the  jury  are  convinced 
that  there  was  no  such  neglect  or  want  of  prudence,  but  that 
it  was  the  result  of  unavoidable  accident  on  the  part  of  the 
defendant,  they  will  find  for  the  defendant."  The  rule  was 
well  illustrated  in  Wakeman  v.  Robinson.^  The  defendant's 
horse  was  young  and  spirited,  and  he  drove  him  without  a 
curb,  in  consequence  of  which  he  \vas  less  easily  managed ; 
in  that,  there  was  negligence.  The  defendant,  in  his  alarm, 
pulled  the  wrong  rein  ;  in  that,  there  was  want  of  skill.  On 
either,  or  both  these  o-rounds,  the  defendant  was  liable  for 
the  consequences.  But  if  his  horse  had  been  properly  har- 
nessed and  skilfully  managed,  and  the  accident  to  the 
plaintiif  had  still  occurred,  it  would  have  been  held  inevit- 
able ;  although  the  defendant  had  the  physical  power  to  have 
guarded  against  it,  eithei'  by  entirely  stopping  his  horse  the 
moment  he  saw  the  plaintiiTs  wagon,  or  by  driving  at  a  very 
Slow  and  moderate  pace.  But  this  is  a  degree  of  caution 
which  the  law  does  not  exact.'" 

'  Dygert  v.  Bradley,  8  Wend.  469. 

"  7  Vt.  62.  '  1  Bing.  213. 

*  Neither  the  highway  oflScers  of  the  towns,  nor  the  directors  of  plank-road 
companies,  are  required  to  grade  the  whole  space  within  the  limits  of  the  high- 
way, so  tjiat  a  traveler  can  safely  drive  his  carriage  over  every  part  of  it.  In 
ordinary  cases,  if  they  provide  a  pathway  for  carriages  of  suitable  width,  and  so 


§  7.  ACTS   WHICH   MAY   OR  MAY  KOT   CONSTITUTE.  5 

§  7.  If  any  blame  be  imputable  to  the  defendant,  though 
he  did  not  mean  to  injure  the  plaintiff,  or  any  other  per- 
son, lie  is  liaVjlc  for  the  damages  sustained,  as  in  the  case  of 
the  accidental  discharge  of  a  gun  which  a  person  has  in  his 
liaud,^  a  great  degree  of  care  being  demanded  in  the  use  of 
of  such  a  weapon ;  or  the  falling  against  a  stove,  and  thereby 
causing  hot  water  to  scald  another,  by  a  person  who  is 
intoxicated.^  '"* 


define  it  as  that  there  shall  be  no  reasonal)le  danger  of  its  being  mistaken,  they 
will  not  be  in  fault  if  a  traveler  chooses  to  try  an  experiment  upon  the  part 
which  is  not  thus  prepared  for  traveling.  Where  a  road  is  so  constructed  or 
altered,  as  to  present  at  one  point  two  paths,  both  of  which  exhibit  the  appsai"- 
auce  of  having  been  used  l)y  travelers,  and  one  of  them  leads  to  a  dangerous 
precipice,  v.hiic  the  otiier  is  quite  safe,  it  is  the  duty  of  those  having  charge  of 
the  road  to  imiicate  in  a  manner  not  to  be  mistaken,  hy  day  or  by  niglit,  that 
the  unsafe  path  is  to  be  avoided ;  and  if  it  cannot  be  otherwise  done,  to  ()ut  up 
suc!i  an  obstruction  as  will  turn  the  traveler  from  the  wrong  track  (Johnson  v. 
Whitefield,  6  Shepl.  280;  Packard  v.  Packard,  16  Pick.  191;  Shepardson  v.  In- 
h:ibs.  of  Colerain,  13'Metc.  55;  Rice  v.  The  Town  of  Montpelier,  19  Vt.  470; 
Ireland  agst.  Oswego.  Hannibal  and  Sterling  Plank  R.  Co.  13  N.  Y.  52(3). 

"I  am  bound  to  iiave  the  approach  to  my  house  sufficient  for  ail  visitors  on  busi- 
ness or  otherwise.  Bu.t  if  a  crowd  gathers  upon  it  to  witness  a  passing  parade, 
and  it  Ijreaks  down,  thougli  it  may  be  shown  not  to  have  been  sufficient  even  for 
its  ordinaiT  use,  I  am  not  liable  to  one  of  the  crowd.  I  owe  no  duty  to  him.  If 
a  traveler  by  foot,  on  the  open  track  of  a  railroad  crosses  a  bridge,  which  ought 
to  be,  but  is  not.  in  its  ordinary  use,  strong  enough  to  bear  a  locomotive  and 
train  of  cars,  and  a  decayed  board  breaks  down  under  him,  the  company  are  not 
liable  to  him,  for  thev  owe  him  no  dutv  "  (Sharswood,  J.,  in  Gillis  v.  Pennsyl. 
R.  R.  Co.  59  Peun.  St.  R.  129j. 

In  Phila.  and  Reading  R.  R.  Co.  v,  Huramell,  44  Penn.  St.  R.  375,  the 
plaintiff  below  was  a  boy  of  tender  years  to  whom  no  contributory  negligence 
could  be  imputed.  He  was  on  the  track  of  a  railroad,  not  at  a  crossing.  It  was 
held  that  the  railroad  company  as  to  persons  so  on  the  track,  were  not  bound  to 
give  any  warning  at  starting.  Strong,  J.,  remarked  that  there  was  "as  perfect 
a  duty  to  guard  against  an  accidental  injury  to  a  night  intruder  into  one's  bed 
chamber,  as  there  is  to  look  out  for  trespassers  upon  a  railroad,  where  the  public 
has  no  right  i(j  be." 

'  Morgan  v.  Cox,  22  i\Io.  373;  Gennings  v.  Fundeburg,  4  McCord,  161. 

'■'  Sullivan  v.  Murphy,  2  Miles,  298. 

*  Gates  agst."  Miles,  3  Conn.  04,  was  an  action  of  trespass  for  injuring  the 
plaintiff's  sloop  by  running  into  her  with  another  vessel.  It  appeared  that  the 
(ielendant  was  })roceeding  with  tlie  sloop  Susan  through  Long  Island  Sound  to 
New  Haven,  and  that  the  plaintift'  was  navigating  the  sloop  Mary,  in  an  opposite 
din'c;ion.  to  New  York.  When  distant  from  each  other  about  thirty  rods,  the 
defendant  connu'inded  the  man  at  the  helm  of  the  Susan  to  h/^ff';  in  obedience  to 
which  the  hebnsman  suddenlv  luffed  and  turned  the  Susan  to  windward,  and  in 
consecjuence  of  tlie  direction  thus  given,  she  directly  struck  the  larboard  quarter 
of  the  Mary  with  great  violence,  and  caused  the  injury  for  which  the  action  was 
brought.  It  was  held  that  trespass  was  the  proper  remedy,  whether  the  act  com- 
plained of  was  wilful  or  resulted  from  want  of  skill  and  care.  A  verdict  having 
been  directed  for  the  defendant  in  the  court  below,  on  the  ground  that  the 
plaintiff,  in  bringing  an  action  on  the  case,  had  misconceived  his  remedy,  the 
Supreme  Court,  in  denying  a  motion  for  anew  trial,  said:  "If  it  had   appeared 


G  DEFINITION   AND   NATURE   OF   TRESPASS.  §  8. 

.    §  S.  If  a   person    commit    a  voluntary  act  winch  Le  is 
nr.der  no  obligation  to  do,  lie  is  liable  for  any  injury  that 


lb;it  the  wimls  and  waves  baffled  the  defindant's  purjiose,  and  counteracted  his 
eliorts.  the  motion  woidd  have  presented  a  case  ver}'  difterent  from  the  one  be- 
fore the  court.  On  this  subject  tliere  is  a  total  silence;  and  had  a  fact  so  im- 
jiortant  been  made  to  api>ear.  it  would  not  liave  been  omitted  in  tiie  statement 
made  for  tlie  purpose  of  reviewing  the  former  decision.  Tlie  damage  then  was 
efleeted  by  a  stroke  from  the  Susan  :  the  immediate  result  of  force  originally  and 
unintermittingly  applied  by  the  defendant.  Exclude  from  consideration  the 
possible  eti'ect  of  the  winds  and  waves,  and  bear  constantly  in  mind  that  the 
elements  Titither  counteracted  the  exertions  of  the  defendant,  nor  operated 
otherwise  than  in  entire  subserviency  to  his  will,  and  what  is  the  result  { — that 
the  helm  and  the  sails,  the  winds  and  the  waves,  were  all  his  instruments  obedient 
to  his  wishes,  and  that  the  Susan  was  directed  by  him  in  the  course  which  ho 
thought  most  eligible.  From  the  moment  t!  e  liclm.  I)y  the  defendant's  direc- 
tion, turned  the  Susan  into  that  path  in  which  the  injury  was  accomplished, 
there  was  no  intermediate  agent  which  varied  the  course  intentionally  pursued. 
"Were  it  said  that  a  person  turned  his  horse,  and,  in  ]iursuanfe  of  the  direction 
given,  ran  over  a  child  and  broke  his  arm,  there  would  exist  no  doubt  whether 
the  damr.ge  was  imputable  to  his  act.  If  the  misfortune  resulted  from  the 
impracticability  of  controlling  the  horse,  it  would  change  the  nature  of  the  case. 
On  these  facts  I  am  extremely  clear  that  tlie  only  legal  remedy  is  tresspass  ci  et 
armis.''^     Chapman,  J.,  diiis'ntaig. 

Dygert  v.  Bradley,  8  Wend.  469.  was  an  action  of  trespass  against  the  master 
of  a  canal-boat  for  running  his  boat  against  the  boat  of  the  plaintifi",  wherein' 
the  side  of  the  ph\intif}''s  boat  was  broken  in,  and  goods  on  board  damaged. 
The  plaintifY's  boat  was  lying  to,  on  the  heel-path  side  of  the  canal.  The  boat 
of  the  defendant  ^^as  a  large  lake-boat,  and  heavily  laden.  It  appeared  that  al- 
though the  canal  was  not  quite  as  wide  where  the  plaintiff's  boat  lay  as  it  was 
some  distance  below,  yet  that  several  b(nits  had  passed  her  while  in  that  place. 
It  was  proved  that  there  was  not  room  for  the  boat  of  the  defendant  to  pass  that 
of  the  ]ilaintiff  at  the  place  where  it  lay,  with  the  depth  of  water  then  in  the 
canal;  but  that  neither  the  plaintitl  nor  defendant  was  aware  of  that  fact.  At 
the  trial  at  the  circuit,  the  judge  charged  that  the  plaintift',  when  he  stopped 
his  boat  uprn  the  canal,  was  bound  to  select,  as  his  station,  a  safe  place,  and 
such  an  one  as  would  admit  the  passage  of  other  boats,  and  if  he  selected  a 
hazardfius  one,  and  an  injury  was  sustained  l)y  him  in  consequence  of  his  exposed 
^taticn,  he  must  bear  the  loss;  that  if  tlie  juiy  believed  that  the  defendant  had 
been  guilty  of  negligence,  or  that  he  intended  to  run  his  boat  against  the  plaint- 
itl "s,  they  should  tind  ftr  the  plaintiff:  but  that  if  the  defendant,  in  endeavoring 
to  pass,  managed  his  boat  in  a  skilful  manner,  and  the  injury  arose  from  the  ex- 
posed situation  of  the  plaintitl',  or  from  mere  accident,  then  they  ought  to  find 
for  the  defendant.  A  verdict  having  been  found  for  the  defendant,  a  new  trial 
was  granted,  because  the  circuit  judge,  in  his  charge,  excluded  from  the  consid- 
eration of  the  jury,  or.  at  all  events,  omitted  to  present  to  them,  the  question 
whether  the  defendant  was  not  bound  to  know,  under  all  the  circumstances  of 
the  case,  that  his  boat  could  not  pass  without  hazard,  and,  if  he  was,  whether 
he  ought  not  to  have  proceeded  more  cautiously.  Sutherland,  J.,  in  delivering 
the  opnuion  of  the  Suiireme  Court,  said:  "  No  actual  fault  seems  to  be  imputable 
to  the  defendant,  and  if  lie  is  to  be  held  responsible,  it  must  be  on  the  ground 
that  the  accident  was  not  inevitable,  inasmuch  as  the  power  by  which  the  boat 
was  propelled  was  entirely  under  his  control,  and  he  was  bound  to  know  or 
ascertain  whether  he  could  pass  with  safety  before  he  made  the  attempt.  The 
liability  of  the  defendant,  in  the  case  at  bar.  appears  to  me  to  depend  upon  the 
question  whether  he  was  not  bound  to  know  that  from  the  state  of  the  water  in 
the  canal  at  that  time,  and  from  the  size  of  his  boat,  and  her  being  heavily 
laden,  lie  could  not  pass  the  plaintiff's  boat  without  hazard;  if  so,  it  was  his 


§  8.  ACTS  WHICH   MAY   OR  MAY   NOT   CONSTITUTE.  7 

may  happen  to  another,  even  tlirongh  accident.  The  casen 
of  a  man  turning  I'ound  and  knocking  down  another  whom 
he  did  not  see,  and  the  shooting  of  an  arrow  at  a  mark,  which 
glanced,  are  of  this  class ;  the  acts  being  purely  voluntary.^ 
Where  a  master  directed  his  servant  to  lay  some  ruljbish 
near  his  neighbor's  wall,  but  so  that  it  might  not  touch  the 
wall,  and  the  servant  exercised  Qrdinary  care  in  obeying  the 
orders  of  his  master,  but  some  of  the  ruljbish  fell  against  the 
wall,  it  was  held  that  the  master  was  liable  as  a  trespasser.^ 
A.,  with  B.'s  consent,  cut  wood  on  B.'s  land,  and  left  it  lying 
there,  and  B.,  in  order  to  clear  up  another  part  of  his  land, 
and  with  no  intention  of  burning  A.'s  wood,  set  fire  to  some 
brush,  and  the  fire  escaped  from  B.'s  control  and  ran  on  t<> 
the  land  where  the  wood  of  A.  was,  and  consumed  it.  It 
was  held  that  an  action  of  trespass  might  be  maintained  by 
A.  against  B.  for  the  injury.*^  * 

duty,  either  not  to  have  nifide  the  attempt  to  pass,  or  to  have  proceeded  so 
slowly  and  cautiously  that  no  injury  could  have  been  produced  from  the  col- 
lision. The  defendant  had  the  entire  control  of  the  speed  of  his  boat,  and,  al- 
though it  appears  that  her  motion  was  not  rapid,  it  was  not  as  slow  as  it  might 
and  ought  to  have  been,  if  he  was  bound  to  know  that  the  attempt  to  pass  was 
hazardous.  Tlie  case,  I  think,  should  have  been  put  to  the  jury  upon  these  prin- 
ciples." 

'  Vincent  v.  Stinehour,  7  Vt.  63;  Gates  v.  Miles,  3  Conn.  64,  and  cases  cited ; 
Loubz  V.  Hafner,  1  Dev.  185. 

•■'  Gregory  v.  Pi])er,  9  B.  &  C.  591 ;  and  see  Welch  v.  Durand,  3G  Conn.   183. 

=  Jordan  v.  Wyatt,  4  Gratt.  151. 

*  In  Brown  v.  Neal,  36  Maine,  407.  which  was  an  action  of  trespass  qiwre 
clausum  committed  in  the  construction  of  a  road,  the  court,  per  Shepley,  C.  .J., 
in  overruling  exce])tions  to  the  verdict,  said  :  "When  is  a  trespass  to  be  re- 
garded as  involuntary  or  by  negligence  or  mistake  ?  It  may  be  involuntary  or 
committed  l)y  mistake,  when  a  person  believes  that  he  is  doing  an  act  upon  his 
own  land,  or  upon  the  land  of  another  by  permission,  wdien  he  in  fact  is  not,  but 
is  doing  it  upon  land  on  which  he  had  no  right  to  enter.  It  may  be  committed 
througli  negligence,  when  a  person  designs  to  do  an  act  upon  land  on  which  he 
might  lawfully  do  it,  and  from  want  of  proper  care  or  attention,  he  passes  on  to 
the  land  of  another,  claiming  no  right,  and  having  no  intention  to  do  so.  It 
cannot  be  involuntary  or  by  mistake,  when  one  knowingly  enters  upon  the  laud 
of  another,  claiming  right  to  do  so.  If  there  be  neglect,  or  mistake  in  such 
case,  it  must  arise  from  want  of  care  to  ascertain  whether  he  had  any  legal  rigiit 
to  do  so,  or  from  a  mistake  of  the  law  respecting  it."  Hathaway,  J.,  did  not 
concur  in  the  foregoing  remarks  of  the  Chief  Justice,  but  submitted  his  views  as 
follows  :  "  If  a  man  get  over  the  line  between  him  and  his  neighbor  by  mistake, 
and  cut  a  tree,  sup|)osing  he  is  on  his  own  land — or  if  he  suppose  he  has  permis- 
sion, when  in  fact  he  has  not,  the  act  is  voluntary;  the  trespass  is  involuntary. 
He  did  not  intend  to  do  wrong.  In  this  case,  the  defendant  made  the  road, 
supposing  he  had  lawful  permission.  He  was  mistaken.  True,  he  neglected 
to  inform   liimself  that  the  road  was  not  legally  made  out ;  and  so,  the  man 


8  DEFINITION   AND  NATURE   OF   TRESPASS.         §§  9,  10. 

§  9.  An  authority  in  law  affords  a  justification  for  all 
acts  and  trespasses  committed  in  the  exercise  of  it,  so  long 
as  the  authority  has  not  been  abused  or  exceeded.  An  ac- 
tion will  not  therefore  lie  against  a  judge  for  a  wrongful 
commitment  or  an  erroneous  judgment,  nor  for  any  act  done 
by  him  in  his  judicial  capacity ;  nor  against  a  grand  juryman 
for  wrongfully  presenting  and  finding  a  bill  of  indictment ;  nor 
against  a  petty  juryman  for  a  wrong  verdict ;  nor  against  a 
coroner,  who  is  a  judicial  officer,  for  any  matter  done  by  him 
in  the  exercise  of  his  judicial  functions.  The  general  rule  as 
respects  judges  and  judicial  officers  is,  that  if  they  do  any  act 
beyond  the  limit  of  theii'  authority  causing  injury  to  another, 
they  thereby  subject  themselves  to  an  action  for  damages ; 
but  if  the  act  done  be  within  the  limit  of  their  authority, 
through  an  erroneous  or  mistaken  judgment,  they  are  not 
liable  to  an  action.^ 

§  10.  Where  persons  do  not  act  judicially,  but  have  only 
a  discretion  confided  to  them,  an  erroneous  exercise  of  that 
discretion  will  not  make  them  liable,  if  they  have  due  legal 
authority  and  power  to  act  in  the  matter.^  Consequently,  if 
an  order  has  been  made  in  a  cause  in  court  over  which  the 
court  has  a  general  jurisdiction,  the  ministerial  officer  who 
executes  it,  is  not  responsible ;  and  the  clerk  of  the  court  is 
likewise  protected  so  long  as  he  confines  himself  to  the  min- 
isterial duties  of  his  office.^  *     For  the  same  reason,  it  is  a 


who  got  over  the  line  neglected  to  inform  himself  where  the  line  was.  and  he 
who  cut  without  permission,  supposing  he  hud  one,  neglected  to  ascertain  the 
fact.  There  is  a  distinction  in  the  cases,  but  too  shadowj'.  I  think,  to  make  a 
difference.'' 

In  North  Carolina,  where  a  person  occupying  land,  trespassed  on  the  adjoin- 
ing premises  through  ignorance  of  the  true  boundar\-,  hut  disclaimed  title,  and 
tendered  reasonable  amends  before  action  brought,  it  was  lield  that  the  tres- 
passer was  protected  under  the  statute  (Rev.  bts.  ch.  '61,  §83;  Blackburn  v. 
Bowman,  1  Jones*  Law,  N.  C.  441). 

'  Hammond  v.  How-ell,  1  Mod.  184;  2  Mod.  218;  Doswell  v.  Impev,  1  B.  & 
'C.  163 ;  Gahan  v.  Lafitte,  5  Moore  P.  P.  C.  382. 

^  Ferguson  v.  Earl  Kinnoul,  9  CI.  &  Fin.  290. 

=  Andrews  v.  Harris,  1  Q.  B.  3;  Dews  v.  Riley.  11  C.  B.  434. 

*  Where  a  writ  of  haheas  corpus,  issued  at  the  instance  of  a  person  in  custody, 
is  afterwards  countermanded  by  him  without  the  knowledge  of  the  officer  who 
executes  it,  the  officer  will  not  be  liable.    Action  for  assaulting  the  plaintiff  and 


§  11.  ACTS  WHICH  MAY   OR  MAY   NOT   CONSTITUTE.  9 

justification  of  the  acts  of  a  United  States  officer  that  they 
were  done  under  hiwful  public  orders ;  ^  but  not  where  the 
orders  were  given  without  authority.^ 

§  11.  The  lawful  character  of  an  occupation,  or  the  care 
with  w^hich  it  is  carried  on,  will  not  defeat  a  right  of  action 
by  those  whose  enjoyment  of  life  and  property  is  disturbed 
in  consequence  of  the  mode  or  means  of  conducting  such 
occupation.  The  right,  for  instance,  to  use  a  steam  engine 
on  one's  own  premises,  does  not  depend  upon  its  utility  and 
lawfulness,  or  the  purpose  for  which  such  use  is  resorted  to, 
nor  upon  the  final  results  of  the  use.  The  intermediate  in- 
jury before  such  results  are  obtained,  may  make  the  use  un- 
lawful.^ An  act  may  be  lawful  in  itself,  and  continue  to  be 
so  until  injury  has  been  inflicted,  when  it  immediately 
becomes  unlawful,  and  an  action  will  lie  therefor ;  as  w^here 
a  person  sinks  mines,  and  digs  in  his  own  land,  or  kindles  a 
fire  thereon,  doino;  no  damag;e  in  the  first  instance  to  his 
neighbor,  but  afterward  causing  his  neighbor's  land  to  slide 
into  the  artificial  hollow,  or  the  neighbor's  house  to  be 
burned  by  the  unexpected  spreading  of  the  fire,'*  Where  the 
plaintifi'  and  defendant,  who  were  porters  on  the  custom- 
house quay,  had  each  small  boxes  in  a  hut  on  the  quay  for 

compelling  him  to  go  to  the  Arches  Court.  Plea  that  the  defendant  was  keeper 
of  tlie  queen's  prison,  and  the  plaintiff  a  prisoner  there;  that  a  Avrit  of  habeas 
corpus  issued,  commanding  tlie  defendant  to  have  the  body  of  the  plaintiff  at  the 
Arches  Court ;  that  the  plaintiff  refused  to  go,  wherefore  the  defendant  com- 
pelled him,  &c.  Keplication,  that  the  writ  issued  at  the  instance  of  the  plaintiff, 
and  no  other  person,  as  the  defendant  w^ell  knew,  and  that  the  plaintiff  gave 
notice  to  the  defendant  not  to  execute.  Rejoinder,  that  the  defendant  did 
not  know  that  the  writ  issued  at  the  instance  of  the  plaintiff,  and  no  other  per- 
son. It  was  held  that  this  issue  was  not  supported  \>j  evidence  that  the  plaint- 
iff's agent  informed  a  person,  wlio  was  clerk  of  tlie  papers  and  deputy  keeper  of 
the  prison,  that  the  writ  was  issued  by  the  plaintiff,  and  that  he  was  not  to  be 
taken  before  the  Court  of  Arclies,  the  writ  itself  not  containing  on  the  face  of  it 
the  name  of  the  party  at  whose  instance  it  was  sued  out  (Herring  v.  Hudson, 
:i  Exch.  107;  18  L.  J.  Exch.  2.S). 

An  action  of  trespass  cannot  be  maintained  for  injury  committed  under  orders 
of  a  military  officer  in  a  case  of  extreme  necessity  (Barrow  v.  Page,  5  Hayw.  97). 

'  Durand  v.  Hollins,  4  Blatchf.  C.  C.  451. 

"  Lively  v.  Ballard,  2  W.  Va.  49G.  =  .McKeon  v.  See,  4  Robertson,  449. 

*  Bonoini  v.  Backhouse,  Ell.  Bl.  &  Ell.  022;  28  L.  J.  Q.  B.  378:  Smitii  v. 
Tliackerah,  L.  R.  1  C.  P.  564;  Filliter  v.  Phip;)ird,  11  Q.  B.  347;  Tai)ervil  v. 
Stamp,  1  Salk.  13;  Clark  v.  Foot,  8  Johns.  421. 


10  DEFINITION   AND  NATURE   OF   TRESPASS.  §  12. 

storing  small  parcels  of  goods  until  they  could  be  put  on 
l)oard  of  ship,  and  the  plaintiff  placed  some  goods  in  the  hut 
in  such  a  manner  that  the  defendant  could  not  get  to  his  box 
without  removing  them,  ^Yhich  he  accordingly  did,  but  forgot 
to  put  them  back  again,  and  the  goods  were  lost,  it  was  held 
that,  althouo-h  the  defendant  had  a  rio-ht  to  remove  the  o;oods, 
yet,  as  he  had  not  returned  them  to  the  place  where  he  found 
them,  there  might  be  ground  for  an  action  of  trespass  in  med- 
dling with  them.^ "  / 

§  12.  The  law  will  afford  no  aid  to  a  party  whose  claims 
can  be  successfully  enforced  only  ])y  a  violation  of  its  princi- 
ples, or  in  direct  contravention  of  a  statute.  It  has  been 
held  that  if  the  owner  of  a  horse  knowingly  lets  him  on  Sun- 
day to  be  driven  to  a  particular  place,  but  not  from  any  pur- 
pose of  necessity  or  charity,  and  the  hirer  injures  the  horse 
by  immoderate  driving,  an  action  cannot  be  maintained 
against  him  for  such  injury,  although  it  is  occasioned  in 
going  to  a  different  place,  and  beyond  the  limits  specified  in 
the  contract.^  If  a  gang  of  counterfeiters  should  quarrel 
about  the  division  of  their  stock  or  tools,  and  one  should 
take  the  whole,  in  violation  of  the  laws  by  whiek  such  asso- 
ciations subsist,  a  court  of  justice  would  not  interfere,  it 
beingf  deemed  a  scandal  that  such  matters  should  be  dis- 
cussed  or  adjusted.  One  who  sets  himself  deliberately  to 
work  to  contiavene  the  fundamental  laws  of  civil  govern- 
ment, forfeits  his  own  right  to  protection  in  tkose  respects 
wkerein  he  was  endeavoring  to  infringe  tke  rights  of  others.^ 
Consequently,  the  prevention  of  an  unlawful  act,  does  not 
constitute  a  valid  cause  of  action  on  the  part  of  the  would-be 
offender  who  is  interfered  with  in  the  commission  of  his  "in- 


'  Bushel  V.  Miller,  1  Str.  129. 

^  Lord  V.  Chadbourne,  42  Maine,  429 ;  Gregg  v.  Wyman,  4  Cush.  322. 

=  Spaulding  v.  Preston,  21  Vt.  9. 

*  The  right  of  a  person  to  use  his  property  as  he  pleases  is  unlimited  and  un- 
qualified up  to  the  point  where  the  particular  use  becomes  a  nuisance  (Fisher  v. 
Clark,  41  Barb.  329). 


§  12.  ACTS   WHICH   MAY   OR  MAY   NOT   CONSTITUTE.  11 

tended  offense.^*  The  general  principle  involved  in  tlie 
cases  is,  that  the  law  distinguishes  between  rights  acquired 
in  conformity"  with,  and  arising  under  its  provisions,  and 
claims  originating  in  their  clear  and  palpable  violation  ;  that 
it  will  not  enforce  claims  made  in  contravention  of  its  man- 
dates, nor  protect  property  held  against,  and  being  used  for 
the  deliberate  purpose  of  disobeying  its  enactments.^ 


'  Bangor  &c.  E.  R.  Co.  v.  Smith,  49  Maine,  9. 

^  Lord  V.  Chadbourne,  42  Maine,  439. 

*  "  Governments,  upon  the  most  obvious  principles  of  necessity,  exercise  more 
or  less  of  preventive  force.  All  sanitary  cordons,  and  preventive  re^rulations, 
everything  in  regard  to  the  police  of  our  cities  and  large  towns,  prohil)itious  of 
lotteries,  gambling-houses,  brothels  and  disorderly  taverns,  whether  done  l)y 
general  statutes,  or  mere  police  regulations,  come  under  the  right  of  preventing 
more  serious  injuries.  This  must,  of  course,  somewhat  interfere  with  the  natural 
rights  of  individuals.  One  infected  with  contagion  is  instantly  removed  beyond 
the  reach  of  contact.  A  ship  or  cargo  coming  from  an  infected  port  is  subjected 
to  long  delay  and  great  expense,  to  prevent  the  possibility  of  spreading  pesti- 
lence. This  may.  in  some  instances,  endanger  the  lives  and  health  of  the  indi- 
viduals concerned,  and  must  always  more  or  less  affect  property,  and  abridge 
personal  liberty.  And  it  is  often  done  without  any  special  law,  and  may  always 
be  so  done, — as  iu  the  case  of  cholera  suddenly  breaking  out  in  some  remote  in- 
land town.  What  would  be  thought  of  an  action  for  assault  and  battery  brought 
against  a  health  officer  who  removed  the  plaintiff  from  a  town  or  village  to  pre- 
vent contagion ;  or  against  the  peace  officer  wdio  laid  his  hand  upon  one  under 
an  honest  belief  that  he  was  insane;  or  against  the  sheriff  who,  by  direction  of 
the  prosecuting  attorney,  detains  counterfeit  coin,  or  those  partly  finished  ?  We 
find  no  such  actions  in  the  books;  and  the  want  of  precedent  shows  the  general 
sense  upon  the  subject,  when  it  is  notorious  that  the  public  officers  in  our  cities 
subject  persons  suspected  of  crime,  and  every  species  of  engine  and  material 
with  which  it  is  even  suspected  they  intend  to  operate,  to  just  such  restrictions 
as  they  deem  proper,  and  this  without  regard  to  any  speciid  provision  of  law. 
The  same  is  true,  also,  of  those  suspected  of  infection.  And  with  regard  to  un- 
wholesome iirovisions,  if  found  to  be  so  in  a  dangerous  degree,  they  may  even  be 
destroyed.  So,  too,  of  books  and  prints,  and  of  all  other  devices  to  corrupt  the 
public  morals.  So,  likewise,  certain  trades  are  considered  common  nuisances  in 
places  of  great  public  resort  or  concourse — like  the  smelting  of  metals,  slaughtering 
animals,  &c.,  which  would  be  likely  to  endanger  the  public  health.  And  gam- 
blingdiouses  and  brothels  have  i)een  regarded  as  common  nuisances  in  the  cities. 
Society,  in  these  cases,  and  many  others,  has  the  right  to  anticipate,  in  order 
that  it  may  prevent  the  injury  which  is  thus  threatened.  If  it  were  not  so,  men 
in  a  social  condition  would  be  far  more  powerless  for  purposes  of  defense  than 
in  a  natural  state  "  (Redfield,  J.,  in  Spalding  v.  Preston,  21  Vt.  9). 

The  police  power  extends  to  the  search,  seizure,  and  destruction  of  property. 
Nuisances  may  be  abated  in  the  most  summary  manner;  dogs  fount!  chasing 
sheep  may  be  shot  down;  gambling  implements  be  dcstroyea ;  lottery  tickets 
and  obscene  prints  prohibited;  and,  under  the  quarantine  laws,  the  health  officer 
of  a  city,  to  prevent  the  spread  of  infection  or  contagion,  may  destroy  bedding 
or  clothing,  or  any  part  of  the  cargo  of  a  vessel.  Gunpowder  kept  in  improper 
places  may  be  seized  and  confiscated.  The  exercise  of  this  authority  is  a  power 
of  prevention,  highly  conservative  in  its  character,  and  essential  to  the  well- 
being  of  the  body  politic,  and  ought  not  to  be  characterized  as  arbitrary  or 
despotic. 


12  definitio:n  and  nature  of  trespass.  §  13. 

3.  Infringement  of  riglit  witJwut  specific  injury. 
§  13.  Whenever  a  person  establishes  a  legal  riglit  or  title 
in  himself,  which  has  been  invaded,  weakened,  or  destroyed 
by  the  unlawful  act  of  another,  which  act  would  be  evidence 
in  future  in  favor  of  the  wrong-doer,  an  action  for  damages 
may  be  maintained,  althougli  no  pecuniary  loss  can  be 
proved.^  Therefore,  ^vhere  a  person  has  a  right  to  a  stream 
flowing  through  bis  land,  he  may  maintain  an  action  for  the 
diversion  of  the  water,  thougli  he  has  not  used  and  does  not 
want  to  use  it.^  So,  likewise,  when  it  was  suggested  by  the 
defendant,  in  an  action  for  overflowing  land  which  the  plaint- 
iff owned  in  fee,  that  the  injurious  acts  Avere  continued  but 
a  short  time,  and  that  instead  of  being  an  injury  they  were 
a  benefit  to  the  land,  the  court  replied  that  no  infringement 
of  the  rights  of  another  could  be  justified  on  the  ground  that 
the  act  was  a  benefit  to  the  owner,  if  it  was  done  against  his 
vvill.^  Again,  the  court  refused  to  set  aside  a  verdict  for  the 
plain tifi^,  in  an  action  for  trespassing  upon  his  several  fishery, 
though  the  defendant  caught  no  fish,  on  the  ground  that  the 
act  of  fishing  was  not  only  an  infringement  of  the  plaintift"'s 
right,  but  would  be  evidence  of  using  and  exercising  the 
right  by  the  defendant,  if  the  act  were  overlooked.**     And 

•  Embrey  v.  Owen.  6  Exch.  353;  Canal  Co.  v.  King,  14  Q.  B.  122;  Webb  v. 
Portland  Manf.  Co.  3  Snmuer,  197;  Woodman  v.  Tults,  9  N.  Ilamp.  88;  Snow 
V.  Cowies,  2  Post.  302 ;  Cowles  v.  Kidder,  4  lb.  379 ;  Basset  v.  Salisbury  Muuf. 
Co.  8  lb.  455;  Nicklin  v.  Williams.  10  Excli.  259;  Wintringbam  v.  Lafov,  7 
Cowen,  735;  Cadwell  v.  Farrell,  28  111.  438. 

'  Embrey  v.  Owen,  suyra.  ^  Tillotson  v.  Smith,  32  N.  Hamp.  90. 

■*  Patrick  v.  Greenway,  1  Wnis.  Saund.  346,  iwte  2. 

*  The  maxim  de  minimis  non  curat  lex  is  "never  ap})lied  to  the  positive  and 
wrongful  invasion  of  another's  property.  '  To  warrant  an  action  in  such  a 
case,'  says  a  learned  writer,  'some  temporal  damage,  be  it  more  or  less,  must 
actually  have  resulted,  or  must  be  likely  to  ensue.  The  degree  is  wholly  imma- 
terial; nor  does  the  law  upon  every  occasion  require  distinct  proof  that  an  incon- 
venience has  l)een  sustained.  For  example,  if  the  hand  of  A.  touch  the  person 
of  B.,  who  shall  declare  that  pain  has  or  has  not  ensued?  The  only  mode  to 
render  B.  secure  is  to  infer  that  the  inconvenience  has  actually  resulted  '  (Ham- 
monds N.  P.  39).  'Where  a  new  market  is  erected  near  an  ancient  one,  the 
owner  of  the  ancient  market  may  have  an  action,  and  yet  perhaps  the  cattle  that 
would  have  come  to  the  old  market  might  not  have  been  sold,  and  so  no  toll 
would  have  been  gained,  and  consequently  there  would  have  been  no  real  dam- 
age; but  there  is  a  possibility  of  damage'  (2  Ld.  Raym.  948).  In  Ashby  v. 
White,  wherein  Powell,  J.,  laid  down  this  rule  as  to  the  market,  it  was  held 
finally  by  the  house  of  Lords,  that  to  hinder  a  burgess  from  voting  for  a  member 


§  14.  MOTIVE    OR   INTENTION.  13 

it  lias  been  lielcl  that  wliere  a  tenant  makes  material  altera- 
tions in  property  let  to  liira,  by  opening  new  doors,  erectin;j; 
new  buildings,  removing  partitions,  or  changing  the  form 
and  appearance  of  a  house,  without  the  consent  of  the  land- 
lord, he  is  lialile  in  damages,  although  the  premises  may 
have  been  enhanced  in  value  by  the  alterations.^  * 

4,  Motive  or  intention. 
§  14.  It  is  a  general  rule,  "that  when  one  does  an  illegal 
or  mischievous  act  which  is  likely  to  prove  injurious  to 
others,  and  when  he  does  a  legal  act  in  such  a  careless  and 
improper  manner  that  injury  to  third  persons  may  probal)]y 
ensue,  he  is  answerable,  in  some  form  of  action,  for  all  the 
consequences  which  may  directly  and  naturally  result  from 
his  conduct ;  and,  in  many  cases,  he  is  answerable  criminally 
as  well  as  civilly.  It  is  not  necessary  that  he  should  intend 
to  do  the  particular  injury  which  follows,  nor  indeed  any 
injury  at  all.  If  a  man,  without  just  cause,  aim  a  blow  at 
his  enemy,  which,  missing  him,  falls  upon  his  friend,  it  is  a 
trespass  upon  the  friend,  and  may  be  murder  if  a  deadly 
weapon  was  used  and  death  ensued.  Or,  if  in  attempting  to 
steal  or  destroy  the  property  of  another,  he  unfortunately 
wound  the  owner  or  a  third  person,  he  must  answer  for  the 
consequences,  although  he  did  not  intend  that  particular  mis- 


of  the  House  of  Commons  was  a  good  ground  of  action.  Ko  one  could  say  tliat 
he  had  been  actunlly  injured,  or  would  be;  so  far  from  it,  the  hindrance  might 
have  benefited  him.  But  his  franchise  had  been  violated"  (Cowen,  J.,  in  Seneca 
E.  Co.  V.  Tlie  Auburn  &  Rochester  E.  R.  Co.  5  Hill,  170). 

'  Cole  V.  Green,  1  Lev.  309. 

*  The  English  courts  seem  inclined  to  break  up  tlie  whole  system  of  giving 
verd'cts  when  no  actual  injury  has  been  done,  unless  there  be  some  right  in 
question  which  it  was  important  for  the  plaintiff  to  establish.  In  Williams  v. 
Mostyn,  4  M.  &  W.  145,  where  case  was  brought  for  tlie  voluntary  escape  of  one 
Laugford  taken  on  mesne  process^  and  it  was  admitted  that  tlie  plaintiff  had  sus- 
tained no  actual  damage  or  delay,  the  defendant  having  returned  to  tlie  custody 
of  the  plaintiff,  a  verdict  was  found  for  the  plaintiff  for  nominal  damages.  But, 
on  motion,  the  court  directed  a  nonsuit  to  be  entered,  saying  that  there  had 
been  no  damage  in  fact  or  in  law.  So,  in  a  suit  brought  by  the  owner  of  a  house 
against  a  lessee,  for  opening  a  door  without  leave,  the  premises  not  being  in  any 
way  weakened  or  injured  by  the  opening,  the  court  refused  to  allow  nominal 
damages,  and  remitted  the  case  to  the  jury  to  say  whether  the  plaintiff's  rever- 
sionary interest  liad,  in  point  of  fact,  been  prejudiced  (Young  v.  Spencer,  10  B. 
«fc  C.  145;  21  Eng.  C.  L.  47). 


14  DEFINITION   AND   NATURE   OF   TRESPASS.  §15. 

chief.  And  althoiigli  no  mischief  of  any  kind  may  he 
intended,  yet  if  a  man  do  an  act  whicli  is  dangerous  to  the 
persons  or  property  of  others,  and  Avhich  shows  a  reckless 
disrec^ard  of  consequences,  he  will  be  answerable  civilly,  and 
in  luauY  cases  criminally,  for  the  injuries  which  may  follow 

as  if  he  discharge  a  gun,  or  let  loose  a  ferocious  or  mad 

animal  in  a  multitude  of  people,  or  throw  a  stone  from  the 
house-top  into  a  street  where  many  are  passing,  or  keep  a 
laro-e  quantity  of  gunpowder  near  tlie  dwelling  of  another. 
In  these  and  similar  cases,  he  must  answer  for  any  injuries 
which  may  result  from  his  misconduct  to  the  persons  or 
property  of  others."  ^ 

8  15.  It  IS  the  duty  of  every  one  who  assumes  to  inter- 
fere  with  the  property  of  a  third  person,  to  ascertain  whether 
he  is  acting  under  due  autliority,  and  he  cannot  excuse  him- 
self to  any  one  wbo  has  been  injured  l)y  his  conduct  by  the 
suo:gestion  that  lie  supposed  he  was  acting  under  proper  au- 
thoi'ity.  His  suppositions  are  not  matters  of  defense.^  A. 
havinc/-  sold  to  B.  a  steer  running  at  large  on  a  prairie,  pointed 
out,  ])y  mistake,  the  steer  of  another  person,  which  B.  killed. 
It  was  held  that  trespass  would  lie  against  both  jointly ;  but 
not  if  the  steer  had  been  pointed  out  by  a  stranger.^  *  And 
where,  in  an  action  of  trespass  for  taking  an  ox  belonging  to 
the  plaintiff,  it  was  proved  that  the  defendant  met  the  plaint- 
iff in  the  street,  and  bought  of  the  latter  an  ox,  which  the 
j)laiutiff*  directed  him  to  go  and  take  out  of  his  inclosure, 
and  that  by  mistake  he  took  the  wrong  ox,  it  was  held  that 
the  defendant  was  liable.  The  court  reasoned  thus:  "The 
taking  of  the  plaintiff' 's  ox  was  the  deliberate  and  voluntary 


'  Vandenburgh  v.  Truax,  4  Deiiio,  40-1.  per  Bronson.  Cii.  J. :  post,  §§  111,  282. 

^  Johuson  V.  Stoue,  40  X.  H-.iuip.  19T;  Aiiiick  v.  Ollara,  G  Blackf.  258;  Dex- 
ter V.  Cole,  G  Yvis.  BlU. 

=  Hamilton  v.  Hunt,  14  III.  472. 

*  Where  a  license  lias  been  obtained  under  a  mistake  and  niisunderstanding 
between  the  parties,  without  fraud,  the  license  wdll  be  a  nullity,  but  the  misun- 
derstanding will  go  iu  reduction  of  damages  in  an  action  for  the  unintentional 
trt'soass  (Biidges  v.  Blancliard,  1  Ad.  &  E.  5;]0 ;  see  Davies  v.  Marshall,  10  C.  B. 
N.  S.  697). 


§  IG.  MOTIVE  OR  INTENTION.  15 

act  of  the  defencljmt.  He  raiglit  not  have  intended  to  commit 
a  trespass  in  so  doing.  Neither  does  the  officer,  when  on  a 
precept  against  A.  he  takes,  by  mistake,  the  property  of  B., 
intend  to  commit  a  trespass ;  nor  does  he  intend  to  become  a 
trespasser  who,  believing  that  he  is  cutting  timber  on  his 
own  land,  by  mistaking  the  line  of  division  cuts  on  his  neigh- 
bor's land ;  and  yet,  in  both  cases,  the  law  would  hold  them 
as  trespassers."  ^  '^' 

§  16.  In  civil  trespasses,  tlie  law  considers  the  damage 
actually  inflicted  upon  the  party  wronged,  rather  than  the 
intent  or  malice  of  him  who  is  the  wrong-doer ;  though  the 
QUO  animo  is  sometimes  shown  in  mitio-ation  or  ao;2:i'avation 
of  damages.  To  maintain  the  action,  it  is  not  necessary  to 
prove  that  the  act  was  done  with  any  wrongful  intent ;  it 
being  sufficient,  if  it  was  without  any  justifiable  cause  orpur- 

^  Hobaft  V.  Hagget,  12  Maine,  67;  and  see  Basely  v.  Clarkson,  3  Lev.  37; 
Higginson  v.  York,  5  Mass.  341. 

*  As  a  man  may  be  guilty  of  a  high  crime  if  he  rashly  and  recklessly,  ■without 
proper  precaution,  does  an  act  which  injures  another,  although  he  does  not  in- 
tend to  commit  the  crime  or  actually  know  that  he  is  doiui?  so,  a  fortiori  he 
may  l>e  guilty  of  a  trespass  (Com.  v.  Cornish,  G  Bin.  249).  '"If  the  law  were 
otlierwise,  farmers  and  people  in  villages,  where  cattle  are  allowed  to  run  at 
large,  would  be  exposed  to  great  trouble  and  expense  in  regaining  their  cattle 
driven  oft'  l>y  the  agents  and  servants  of  drovers,  because  in  the  action  of  trover, 
if  they  were  driven  to  that,  the  measure  of  damages  would  be  the  value  of  the 
goods  and  chattels  at  the  time  of  demand,  with  interest,  which  would  be  no 
compensation  for  the  loss  of  time,  expense  and  trouble  in  pursuing  cattle 
to  a  great  distance"  (Coulter,  ,T.,  Brooks  v.  Olmstead,  17  Penn.  St.  R.  24). 

In  Percival  v.  Hickey,  18  Johns.  257,  which  was  an  action  of  trespass  by  the 
master  of  the  American  schooner  Mary  against  the  commander  of  the  British 
schooner  Atlanta,  it  was  insisted  that  the  defendant  and  those  on  board  the 
cruiser  believed  the  Mary  to  be  a  French  vessel;  that  she  was  pursued  as  such, 
will)  tlie  intention  to  capture  her  as  prize  of  war;  and  altiiough  it  turned  out 
.she  was  not  a  French  but  an  American  vessel  and  a  neutral,  jet  the  acts  of  the 
de[endant  were  done  with  the  intention  to  capture  her,  and  that,  therefore,  the 
question  was  one  of  prize  or  no  priz.e,  and  of  admiralty  jurisdiction.  The  Su- 
preme Court,  per  Spencer,  Ch.  J.,  in  taking  a  contrary  view,  said:  "I  cannot 
assent  to  this  conclusion.  The  intention  to  capture  the  Mary  as  a  prize  depended 
altogether  on  the  supposition  that  she  was  a  French  vessel.  It  did  not  exist  if 
she  was  in  fact  an  American  vessel.  It  was,  therefore,  a  conditional  intention, 
depending  on  the  event.  As  the  character  of  the  Mary  during  the  chase  was 
uncertain,  the  defendant  was  "bound  to  conduct  himself  in  such  a  manner  that 
his  acts  siiould  be  justified  by  the  event.  The  intention,  in  a  given  event,  to 
make  her  a  ])rize,  did  not  constitute  the  actual  pursuit  of  a  prize.  There  is 
nothing  in  the  whole  course  of  the  transaction  to  show  that,  in  point  of  fact,  the 
defendant  treated  the  Mary  as  a  prize,  or  that  when  her  national  character  was 
discovered  he  would  have  detained  her  as  a  i)rize,  or  for  any  violation  of  neu- 
trality. I  cannot,  therefore,  consider  tlie  injury  received  by  the  Mary  in  any 
otlier  light  than  as  a  marine  trespass." 


IG  DEFINITION  AND   NATURE   OF   TRESPASS.  ^  17. 

pose.^  In  Guille  v.  Swaii,^  Swan  brought  an  action  of  tres- 
pass in  a  justice's  court  against  Guille  for  injury  to  his  garden. 
It  appeared  that  Guille,  having  ascended  in  a  balloon,  came 
down  in  Swan's  garden,  followed  by  a  large  number  of  per- 
sons to  Avhom,  being  in  a  perilous  situation  as  he  descended, 
he  called  out  for  help,  and  that  some  damage  was  done  to 
the  garden  by  the  balloon,  but  much  more  l)y  the  crowd  in 
treading  down  vegetables  and  flowers.  The  justice  charged 
the  jury  that  the  defendant  was  liable  for  the  whole  damage, 
and  a  verdict  having  been  found  accordingly,  it  was  held 
correct.*  A  similar  decision  was  rendered  in  England,  where 
the  defendant  followed  hounds,  accompanied  by  a  large  con- 
coiu'se  of  persons  on  foot  and  on  horseback,  over  the  plaintiff's 
land,  destroying  the  fences  and  injuring  the  crops,^ 

§  17.  But  although,  as  we  have  already  stated,  the  inten- 
tion with  which  the  wrong  was  committed  is  not  in  general 

'  2  Greenlf.  Ev.  §  022;  Broom's  Leg.  Max.  221;  Sanderson  v.  Baker,  2  W. 
Blk.  882;  Gate  v.  Gate,  44  N.  Hamp.  211. 

^  19  Johns.  381.  •  '  Hume  v.  Oldacre,  1  Stark.  351. 

*  In  Guille  v.  Swan,  svprn^  the  Supreme  Court,  in  affirming  the  judgment,  said : 
"The  counsel  for  the  plaintiff  in  error  supposes  that  the  injury  committed  by 
his  client  was  involuntary,  and  that  that  done  by  the  crowd  was  voluntary,  and 
that  therefore  there  was  no  union  of  intent;  and  that  upon  the  same  principle 
Mhich  would  render  Guille  answerable  for  the  acts  of  the  crowd  in  treading 
down  and  destroying  the  vegetables  and  flowers  of  Swan,  he  would  be  respon- 
sible for  a  battery  "or  a  mm-der  committed  on  the  owner  of  the  premises.  The 
intent  wnth  which  an  act  is  done  is  by  no  means  the  test  of  the  liability  of  a 
party  to  an  action  of  trespass.  If  the  act  cause  the  immediate  injury,  whether  it 
was  intentional  or  unintentional,  trespass  is  the  proper  action  to  redress  the 
■wrong.  I  will  not  say  that  ascending  in  a  balloon  is  an  unlawful  act,  for  it  is 
not  so.  But  it  is  certain  tliat  the  aeronaut  has  no  control  over  its  motion  hori- 
zontally. He  is  at  tlie  sport  of  the  winds,  and  is  to  descend  when  and  how  he 
can.  His  reaching  the  earth  is  a  matter  of  hazard.  He  did  descend  on  the 
premises  of  the  plaintiff  below,  at  a  short  distance  from  the  place  wiiere  he  as- 
cended. Now,  if  his  descent  under  such  circumstances  would  ordinarily  and 
naturally  draw  a  crowd  of  people  about  him,  either  from  curiosity  or  for  the  pur- 
pose of  rescuing  him  from  a  perilous  situation,  all  this  he  ought  to  have  foreseen, 
and  must  be  responsible  for.  Whether  the  crowd  heard  his  call  for  help  or  not 
is  immaterial,  lie  had  put  himself  in  a  situation  to  invite  help,  and  they  rushed 
forward,  impelled,  ])erhaps,  l)y  the  double  motive  of  rendering  aid  and  gratify- 
ing a  curiosity  which  he  had  excited.  Can  it  be  doubted  that  if  the  plaintiff  in 
error  had  beckoned  to  the  crowd  to  come  to  his  assistance  that  he  would  be 
liable  for  their  trespass  in  entering  the  inclosure  ?  I  think  not.  In  that  case, 
they  would  have  been  cotrespassers,  and  we  must  consider  the  situation  in 
which  he  placed  himself  voluntarily  and  designedly  as  equivalent  to  a  direct 
request  to  the  crowd  to  follow  him.  In  the  present  case,  he  did  call  for  help, 
and  may  have  been  heard  by  the  crowd.  He  is,  therefore,  undoubtedly  liable 
for  all  the  injury  sustained  "  (see  4  Denio,  467). 


§  18.  MOTIVE   OR   INTENTION.  17 

material,  yet  there  are  Diany  instances  in  whicli  the  character 
of  an  act  depends  entirely  upon  the  motive.^  The  intent  to 
seduce  a  wife  or  daughter  would  greatly  aggravate  a  trespass.'^ 
On  the  other  hand,  proof  that  the  defendant  entered  the 
plaintiff's  premises  for  the  purpose  of  viewing  a  horse  be- 
longing to  him  which  had  l^een  recently  stolen,  and  was  then 
there,  would  almost  amount  to  a  justification.^  An  unlawful 
act  done  wilfully  and  purposely  to  the  injury  of  another,  is 
as  against  that  person,  malicious;  and  if  he  do  not  justify  or 
excuse  it,  the  law  will  imply  a  bad  intent.  But  he  may 
prove  that  his  intentions  were  good, — that  he  w^as  actuated 
by  no  ill  will  against  the  plaintiff, — and  that  his  demeanor 
was  that  of  a  person  who  meant  no  wrong.*  Such  evidence, 
however,  as  already  intimated,  will  only  bear  upon  the  ques- 
tion of  damages,  and  will  not  in  any  way  tend  to  defeat  the 
plaintiff's  right  to  recover.^ 

§  18.  When  an  act  is  legally  done,  it  cannot  be  made 
illegal  ah  initio  unless  by  some  positive  act  incompatible 
with  the  exercise  of  the  legal  right  to  do  the  first  act.  The 
mere  intention  to  do  a  subsequent  illegal  act,  being  from  its 
nature  mutalde,  cannot  be  substituted  for  the  act  itself. 
This  obviously  correct  principle  was  illustrated  in  Gates  v. 
Lounsbury,^  which  was  an  action  for  assault  and  battery. 
The  defendant  i^leaded  that  he  laid  his  hands  upon  the 
plaintiff  to  prevent  him  from  taking  away  the  defendant's 
horse.  The  plaintiff  replied  that  the  horse  was  wrongfully 
on  his  land  doing  damage,  and  he  was  leading  him  off  of  the 
land  towards  a  certain  pound  with  intent  to  impound  him  as 


'  1  Chit.  PI.  377;  1  Saund.  PI.  &  Ev.  343;  1  Wms.  Saund.  243,  n.  2;  Archb. 
Civ.  PI.  205;  Gates  v,  Lounsbuiy,  20  Johns.  427;  French  v.  Marstin,  4  Fost.  440. 
'  Matteson  v.  Curtis,  11  Wis.  424. 
»  Webb  V.  Beavan,  7  Scott  N.  R.  93G;  6  Man.  &  G.  1055. 

*  Sears  v.  Lyons,  2  Stark.  317;  Rex  v.  Woodfall,  5  Burr.  2667;  Rex  v.  Top- 
ham,  4  T.  R.  194;  Com.  v.  Snclling,  15  Pick.  321;  Colby  v.  Jackson,  12  N. 
Ilamp.  520;  Handy  v.  Johnson,  5  Md.  450;  Roth  v.  Smith,  41  111.  314. 

'  Sherman  v.  Kortright,  52  Barb.  267;  Bruch  v.  Carter,  3  Vroora,  554. 

•  20  Johns.  427. 

Vol.  I.— 2 


18  DEFINITION   AND   NATURE   OF   TRESPASS.  §19. 

.'I  distress,  when  the  assault  and  battery  was  committed. 
Kejoinder  that  the  plaintiff  w^as  leading  the  horse  towards 
the  pound  with  intent  to  impound  him  as  a  distress  before 
he  had  made  application  to  the  fence  viewers  of  the  town,  to 
ascertain  and  appraise  the  damage,  whereupon  the  plaintiff 
^vas  a  trespasser  from  the  beginning.  Held,  on  demurrer, 
that  the  rejoinder  was  bad.'^ 

S  19.  Bad  motives  in  doing;  a  thino-  which  does  not  vio- 
late  the  legal  rights  of  another,  cannot  be  made  a  ground  of 
action.  Where,  therefore,  it  was  alleged  that  the  defendant, 
contriving  and  wrongfully  intending  to  annoy  and  injure  the 
plaintiff  in  the  use  of  his  dwelling-house,  erected,  or  caused 
to  be  erected,  on  the  defendant's  premises,  immediately  ad- 
joining the  plaintiff's  dwelling-house,  and  before  his  windows 
and  doors,  a  board  fence  of  from  eight  to  ten  feet  high,  and 
covered  it  with  gas  tar,  and  permitted  it  to  remain  so,  by 
means  of  which  offensive  and  unwholesome  smells  arose  and 
came  into  and  upon  the  premises  of  the  plaintiff,  and  an- 
noyed him,  and  rendered  his  said  dwelling-house  unhealthy 
and  unfit  for  habitation ;  it  was  held  that  there  was  no  cause 
of  action.^  f 


'  Pickard  v.  Collins,  23  Barb.  444. 

*  In  the  above  case,  Spencer,  Ch.  J.,  in  delivering  the  opinion  of  the  Supreme 
Court,  said:  "  The  rejoinder  attem]its  to  put  in  issue  a  fact  not  triable,  the  in- 
tent of  the  plaintiff'  to  impound  the  horse  in  the  pound  of  the  town,  or  public 
pound,  before  application  was  made  to  the  fence  viewers  to  ascertain  and  ap- 
praise the  damage.  If  that  intent  had  actually  existed  at  the  time  of  taking  the 
iiorse,  it  was  revocable.  The  plaintiff  had  a  jierfect  right  to  change  his  inten- 
tion at  any  time  before  the  liorse  was  actually  placed  in  the  public  pound.  The 
taking  the  horse  is  admitted  by  the  replication  to  have  been  lawful.  The  ille- 
,'ality  of  that  act  depended  on  the  subsequent  conduct  of  the  plaintiff"  in  putting 
the  horse  in  a  public  pound  before  the  damages  were  appraised." 

t  In  Pickard  v.  Collins,  sujn'a,  the  judge  at  the  circuit  charged  the  jury  that 
the  defendant  had  no  right  "  to  build  a  fence  in  an  ur.usual  manner,  materially 
to  injure  and  annoy  his  neighbor,  and  deprive  him  of  the  use  of  his  lot,  for  a 
man  is  bound  so  to  use  his  own  as  to  do  no  needless  injury  to  his  neighbor;  "  and, 
further,  ''  if  you  find  the  defendant  put  this  fence  there,  or  covered  it  with  gas 
tar,  as  stated  by  the  witness,  for  the  purpose  of  injuring  or  annoying  the  plaintiff, 
and  rendering  the  use  and  enjoyment  of  his  premises  uncomfortable,  or  unhealthy, 
and  it  had  that  effect,  that  would  be  an  unreasonable  use  of  his  property,  and  he 
must  be  responsible  for  any  damages  or  injury  done  thereby."  Judgment  hav- 
ing been  rendered  for  the  plaintiff,  the  General  Term  of  the  Supreme  Court,  in 
reversing  it  for  error  in  the  charge,  said:  "The  instruction  in  question,  if  sus- 
tained, would  carry  the  doctrine  so  far,  and  make  the  owner  of  land  liable  for 


§  20.     LIABILITY  FOR  CONSEQUENCES  OF  WRONGFUL  ACT.         19 

5.  Liability  for  consequences  of  wrongful  act. 

§  20.  The  rule  is  well  settled,  that  a  party  doing  or 
causing  an  illegal  act  to  he  committed,  is  liable  for  all  tlie 
consequences  w^hicli  flow  immediately  therefrom ;  ^  and  the 
liability  is  not  varied  by  the  fact  that  the  consequences  of 
the  injurious  act  might  have  been  prevented  by  the  care  and 
skill  of  the  injured  person.^  A.  seized  the  arm  of  B.  in  the 
hall  of  a  school-house,  swung  him  violently  around,  and  then 
let  him  go.  B.  struck  against  C,  who  pushed  him  off,  and 
B.  hit  against  a  hook  in  the  wall  and  was  injured.  In  an 
action  of  trespass  by  B.  against  A.  therefor,  it  was  hekl  that 
the  plaintiff  was  entitled  to  recover.^ 

In  an  action  for  running  into  the  plaintiff's  carriage  with 
the  defendant's  wagon,  it  was  objected  that  the  injury  being 
consequential,  trespass  could  not  be  maintained.  It  was 
held,  however,  that  as  the  consequence  was  immediate,  the 
defendant  was  to  be  deemed  the  active  doer  of  all  that 
directly  followed,  and  a  trespasser.* 

Vandenburgh  v.  Truax^  was  an  action  of  trespass  for 


such  acts,  if  done  with  a  bad  motive.  *  *  *  g^cb  a  principle  would  be 
highly  dangerous  to  the  security  of  the  enjoyment  of  real  property.  As  to  vari- 
ous modes  of  enjoyment,  the  lawfulness  or  unlawfulness  of  them  would  depend 
on  the  views  of  others  as  to  the  intentions  of  the  owner.  The  fallacy  of  this 
doctrine  consists  in  its  overlooking  a  fatal  defect  in  such  a  case — the  absence  of 
any  legal  injury." 

In  Bartlett  v.  Kinsley  et  ah  15  Conn.  327,  the  question  arose  whether,  when 
the  proceedings  of  a  corporate  meeting  appear  regular  an;l  legal,  and  within  the 
legitimate  powers  of  the  body,  persons  are  to  be  adjudged  tresjDassers  who,  in 
the  proper  discharge  of  duty,  assist  in  carrying  them  into  effect,  because  the 
real  purpose  of  a  majority  of  voters,  either  open  or  concealed,  was  to  effect  an 
illegal  object.  The  court,  in  holding  the  negative,  said:  "We  have  no  doubts 
upon  this  question,  and  should  have  none,  though  it  could  be  proved  that  tiiese 
defendants  participated  in  such  unauthorized  purpose.  The  intention  of  a  cor- 
poration can  only  be  learned  by  the  language  of  its  recorded  acts;  and  neither 
the  private  views,  nor  the  public  declarations  of  individual  members  of  such  cor- 
poration, are  for  tliis  purpose  to  be  inquired  after  "  (citing  Fletcher  v.  Peck,  6 
Oranch,  87). 

*  Burton  v.  McClellan,  2  Scam.  434. 

"  Phares  v.  Stewart,  9  Port.  330;  Hunger  v.  Baker,  1  Thompson  &  Cook  N. 
Y.  Supm.  Ct.  R.  122. 

^  Rickcr  v.  Freeman,  50  N.  Ham  p.  420. 

*  Burdick  v.  Worrall,  4  Barb.  59G,  citing  Scott  v.  Sheplierd,  2  W.  Black.  892; 
Leame  v.  Bray,  3  East,  593^ 

'  4  Denio,  464.  ^ 


20  DEFINITION   AND   NATURE   OF   TRESPASS.  §  20. 

"svllfully  driving  a  colored  boy  behind  the  counter  in  the 
plaintiff's  store,  whereby  a  fjiucet  was  knocked  from  a  barrel 
of  port  wine,  and  the  wine  destroyed.  It  appeared  that  the 
boy,  who  was  sixteen  or  eighteen  years  of  age,  was  seen  in 
the  street,  near  the  plaintiff's  store,  approaching  the  defend- 
ant, wdth  a  stone  in  his  hand  ;  that  the  defendant  took  hold 
of  the  boy,  and  told  him  to  throw  the  stone  down  ;  that  the 
boy  got  away  from  the  defendant,  who  pursued  him  with  a 
pickaxe  into  the  plaintiif 's  store  ;  and  that  the  boy,  running 
behind  the  counter  to  save  himself  from  the  pickaxe,  did  the 
mischief  complained  of  At  the  trial  of  the  case  before  a 
justice  of  the  peace,  judgment  was  rendered  for  the  plaintiff, 
which  was  affirmed  by  the  Common  Pleas  and  afterward  by 
the  Supreme  Court. 

A.'s  carriao'e  was  driven  as^ainst  the  wheel  of  B.'s  chaise. 
The  collision  threw  a  person  who  was  in  the  chaise  upon  the 
dashino;-board.  The  dashino;-board  fell  on  the  back  of  tlie 
horse,  and  caused  him  to  kick,  and  thereby  the  chaise  was 
injured.  It  w^as  held  that  B.  was  entitled  to  recover  in  tres- 
pass against  A.  damages  commensurate  with  the  whole  of 
the  injury  sustained.^ 

The  following  somewhat  familiar  case  is  a  good  illustra- 
tion of  the  responsibility  of  a  person  who  is  the  first,  though 
not  the  immediate  agent  in  causing  the  injury.  Shepheivl 
threw  a  lighted  squib,  composed  of  gunpowder,  into  a  market- 
house,  wdiere  a  large  number  of  people  were  assembled.  It 
fell  on  the  standing  of  A.,  and,  to  prevent  injury,  it  was 
thrown  off  his  standing  across  the  market,  when  it  fell  on 
another  standing;  from  thence,  to  save  the  goods  of  the 
owner,  it  was  thrown  to  another  part  of  the  market-house, 
and  in  so  throwing  it,  it  struck  the  plaintiff  in  the  face,  and 
bursting,  put  out  one  of  his  eyes.  Three  of  the  judges 
against  one  held  that  Shepherd  was  answerable  in  an  action 
of  trespass  and  assault  and  battery.  De  Grey,  Cl^.  J.,  re- 
marked that  throwing  the  squib  was  an  unlawful  act ;  and 

'  Gilbertson  v.  Richardson,  5  C.  B.  502;  13  Jur.  292;  17  L.  J.  112. 


§  21.     LIABILITY  FOR  CONSEQUENCES  OF  WRONGFUL  ACT.         21 

that  whatever  mischief  followed,  the  person  throwing  it  was 
the  author  of  the  mischief.  All  that  was  clone  subsequent 
to  the  original  throwing  was  a  continuation  of  the  first  force 
and  the  first  act.  Any  innocent  person  removing  the  danger 
fi-om  himself  was  justifiable  ;  the  blame  lights  upon  the  first 
thrower;  the  ne^v^  direction  and  new  force  flow  out  of  the 
first  force.  He  laid  it  down  as  a  principle,  that  every  one 
who  does  an  unlawful  act  is  considered  as  the  doer  of  all 
that  follows.^  * 

8  21.  Where  the  wTono-ful  act  of  the  defendant  was  the 
proximate  cause  of  the  injury  to  the  plaintiff,  which  would 
not  have  occurred  but  for  that,  the  defendant  is  liable,  al- 
though other  causes  for  which  he  was  not  in  fault  might 
have  contributed  to  the  result.^    Therefore,  executing  a  bond 


'  Scott  V.  Shepherd,  2  W.  Blk.  892;  s.  c.  3  Wils.  403. 

'  Hooksett  V.  Amoskeag  Manf.  Co.  44  N.  Hamp.  105. 

*  The  party  injured,  either  in  his  person  or  property,  by  the  discharge  of  a 
gun,  even  when  the  act  is  lawful,  as  at  a  military  muster  and.  parade,  and  under 
the  orders  of  a  commanding  ofhcer,  is  entitled  to  redress  in  a  civil  action  to  the 
extent  of  his  damage.  And  where  the  act  is  unnecessary — a  matter  of  idle 
sport  and  negligence— and,  still  more,  when  the  act  is  accompanied  with  pur- 
poses of  wanton  or  deliberate  mischief,  and  any  hurt  or  damage  ensues,  the 
guilty  party  is  liable,  not  only  in  a  civil  action,  but  as  an  otfeuder  against  the 
public  peace  and  security.  Cole  v.  Fisher,  11  Mass.  137,  was  an  action  of  tres- 
pass, for  causing  a  horse  to  run  away  with  a  carriage.  It  appeared  that  the  de- 
fendant, after  washing  out  his  gun,  in  order  to  dry  it,  tired  it  otf  from  his  shop 
door,  which  was  about  a  rod  from  the  highway.  The  j^laintilf's  horse  and 
chaise  were  on  the  opposite  side  of  the  highway,  the  horse  being  fastened  to  the 
fence  by  his  bridle.  The  horse  being  terrified  by  the  firing  of  the  gun,  ran  away 
with  the  chaise,  which  was  thereby  broken.  Sewall,  C.  J.,  in  delivering  the 
opinion  of  the  court,  said:  "In  the  case  at  bar,  it  does  not  appear,  from  the 
facts  stated,  how  near  the  place  where  the  horse  was  fastened  was  to  the  door  of 
the  shop,  the  place  where  the  gun  was  fired.  If  the  horse  and  chaise  were  in 
plain  sight,  and  near  enough  to  be  supposed  to  excite  any  attention  or  caution 
on  the  part  of  the  defendant;  or  if  it  was  in  evidence  that  he  had  noticed  their 
being  there,  exposed  to  the  consequences  of  his  firing  the  gun,  and  the  distance 
was  such  that,  by  common  experience,  there  might  be  a  reasonable  apprehension 
of  frightening  tlie  horse  by  the  discharge  of  the  gun,  I  should  think  the  de- 
fendant, although  no  purpose  of  mischief  was  proved,  and  even  if  it  was  not  a 
case  of  very  gross  negligence,  liable  in  an  action  of  trespass.  On  the  other 
hand,  if  tlie  plaintiff's  horse  and  chaise  were  out  of  his  sight,  and  had  not  been 
noticed  by  the  defendant,  and  the  distance  was  such  as  that  no  reaspnable  appre- 
hension of  frightening  the  horse  could  arise,  supposing  the  horse  and  chaise  to 
have  l)een  observed  by  tiie  defendant,  the  injury  is  hardly  to  be  considered  as 
sufficiently  immediate  upon  the  act  of  the  defendant  to  render  him  liable  in  this 
form  of  action;  although  undoubtedly  liable  in  an  action  upon  the  case  to  the 
extent  of  the  damage  actually  sustained  by  the  plaintiff." 


22  DEFINITION  ANT)   NATURE   OF   TRESPASS.       §§  22,  23. 

whicli  provides  for  a  levy  upou  particular  property  not  be- 
longing to  the  judgment  debtor,  will  make  the  obligor  a 
trespasser.^  But  the  defendant  will  not  be  liable  if  the 
cause  of  the  injury  be  remote.  Where,  fgr  instance,  the 
clerk  of  a  school  district  gave  a  certificate  to  tbe  assessor  of 
the  town  that  at  a  meeting  legally  and  duly  organized  (Vjut 
which  it  afterwards  appeared  was  not  legally  called),  it  was 
voted  to  raise  a  certain  sum  of  money ;  and  thereupon  the 
assessors  proceeded  to  assess  the  same,  and  cause  it  to  be 
collected ;  it  was  held  that  the  act  of  the  clerk,  being  only 
the  remote  cause  of  the  injury  complained  of,  trespass  would 
not  lie  against  him.^ 

§  22.  The  rule  under  consideration  is  equally  applicable, 
although  the  damage  was  not  sustained  until  some  time  sub- 
sequent to  the  commission  of  the  wrongful  act.  In  an  action 
for  entering  the  plaintiff's  close,  and  undermining  a  bank 
near  a  dam  that  had  been  built  across  the  river,  whereby 
the  water  of  the  river  three  weeks  afterwards  carried  away 
three  acres  of  the  plaintiff's  land,  it  was  objected,  in  behalf 
of  the  defendant,  that  the  action  was  misconceived,  inasmucli 
as  the  damage  did  not  follow  immediately  and  directly  from 
the  original  act  of  digging  into  tlie  bank,  which  act  was  ad- 
mitted to  have  been  a  trespass.  But  a  verdict  having  been 
found  for  the  plaintiff  for  the  full  amount  of  damage  sus- 
tained by  Mm,  judgment  was  entered  on  it  by  direction  of 
the  court.^  * 

6.  Inciting  or  aiding  the  commission  of  trespass. 

§  23.  All  who  with  full  knowledoje  of  the  facts,  aid, 
command,  advise  or  countenance  the  commission  of  a  tort  by 

'  Pozzoai  V.  Henderson,  2  E.  D.  Smith,  146. 

^  Taft  V.  Metcalf,  11  Pick.  456;  and  see  Barnes  v.  Hurd,  11  Mass.  59. 

»  Dickinson  v.  Boyle,  17  Pick.  78;  post,  §g  112,  278. 

*  Where  one  who  owned  a  mill  dam,  in  order  that  it  might  not  be  broken  by 
a  flood,  severed  it  at  one  end,  whereby  injury  was  caused  to  a  highway  near,  it 
was  held  that  as  the  cutting  of  the  dam  away  was  the  proximate  cause  of  the 
injury,  he  was  liable  (The  State  v.  Knotts,  2  Speers,  692). 


§  23.  INCITING  OR  AIDING  THE  COMMISSION  OF  TRESPASS.       23 

another,  are  equally  liable  with  him  who  commits  it.^  ^'  No 
one  is  allowed  to  incite  another  to  a  wrong,  and  after  its 
commission  to  give  his  want  of  influence  in  evidence  in  bar 
of  an  action.  A.  directed  a  police  officer  to  take  B.  into  cus- 
tody on  a  charge  of  embezzlement,  and  the  officer  having 
done  so,  the  officer  and  A.  went  together  to  a  box  of  B.,  and 
the  officer,  in  the  presence  of  A.,  searched  the  box,  and  took 
from  it  a  sovereign.     In  an  action  by  B.  against  A.  for  the 

'  .Judson  V.  Cook,  11  Barb.  642;  Clark  v.  Bales,  15  Ark.  452;  McMurtrie  v. 
Stewart,  21  Penn.  St.  R.  322;  Horton  v.  Hensley,  1  Iredell,  168;  Ferguson  v. 
Terry,  1  B.  Mou.  96;  Fox  v.  Jackson,  8  Barij.  355;  Adams  v.  Freeman,  9  Johns. 
117;  Collins  v.  Ferris,  14  Johns.  246;  Mallory  v.  Merritt,  17  Conn.  178;  Hall  v. 
Howd,  10  Conn.  514;  Williams  v.  Brace,  5  lb.  190;  Thames  Manf,  Co.  y. 
Lathrop,  7  lb.  550;  Welsh  v.  Cooper,  8  Penn.  St.  R.  217;  Bell  v.  Miller,  5  Ham. 
250;  see  pod,  §§  61,  et  seq.,  and  §§  212-290. 

*  In  Vosburgh  v.  Moak,  1  Cash.  453,  all  the  defendants  were  engaged  in  a 
game  of  wicket  on  a  pui)lic  highway  of  four  rods  in  width.  The  plaintiff  was 
traveling  on  the  highway  in  a  wagon  with  his  wife,  and  while  passing  was 
struck  in  the  pit  of  the  stomach  and  much  injured,  by  the  ijall  v.hich  the  play- 
ers were  using.  It  appeared  that  the  ball  being  wet,  sli'pped  in  the  hand  of  the 
thrower,  and  was  thus  turned  from  the  intended  direction,  and  struck  the 
plaintiff  as  already  stated.  At  the  trial  in  the  Court  of  Conmion  Pleas,  the 
liability  of  the  thrower  of  the  ball  was  not  disputed;  but  the  judge  was  asked 
to  instruct  the  jury  as  to  tiie  other  defendants,  that,  under  a  certain  state  of  facts 
assumed  by  the  defenciant's  counsel,  they  ought  not  to  be  held  responsible.  The 
judge  charged  as  follows  :  "If  the  defend;uits  were  all  engaged  in  the  game  of 
■wicket  on  the  public  highway,  and  if,  from  the  situation  of  the  road,  the  num- 
ber of  persons  passing,  or  other  cause,  the  game  there  was  of  such  a  character  as 
to  endanger  or  expose  to  injury  the  persons  traveling  along  the  road,  or  their 
property,  and  the  injuiT  was  received  by  the  ])laintiff  while  traveling  along  the 
road,  without  any  fault  on  his  part,  the  defendants  would  all  be  liable  in  this 
action,  provided  the  party  who  tlirew  the  ball  was  acting  in  the  usual  manner 
of  persons  engaged  in  the  game,  although  his  object  was  merely  to  return  the 
ball,  and  it  took  a  different  direction  from  that  intended  by  slipping  in  his  hand 
and  taking  a  direction  towards  the  plaintiff."  Dewey,  J.,  in  delivering  the 
opinion  of  the  Supreme  Court,  said  :  "The  limits  of  this  road,  the  amount  of 
travel  thereon,  the  nature  of  the  game,  and  the  circumstances  under  which  the 
plaintiff  received  the  injury,  show  a  clear  case  of  liability  on  the  part  of  the  per- 
son by  whose  immediate  agency  the  injury  was  occasioned.  The  injury  was 
direct,  and  was  properly  the  subject  of  an  action  for  trespass.  The  further  in- 
quiry then  is,  were  all  the  associates  in  this  game  of  wicket  jointly  liable  for 
this  trespass  ?  If  liable  at  all,  they  were  liable  in  trespass,  as  they  were  present 
and  engaged  in  tiie  game  when  the  injury  was  inflicted.  The  ground  taken  in 
defense  is,  that  if  this  injury  resulted  from  an  accidental  misdirection  of  the 
ball  in  the  hands  of  one  of  the  players,  the  others  ought  not  to  be  responsible 
therefor.  It  may  be  difficult  in  some  cases  to  define  the  line  with  entire  satis- 
faction as  to  cases  where  an  association  or  many  persons  are  engaged  in  a  com- 
mon object,  and  an  injury  is  inflicted  by  one  individual  without  intentional  con- 
currence on  the  part  of  the  others,  or  even  without  intention  on  the  part  of  the 
individual  who  inflicts  the  injury,  and  yet.  the  whole  number,  engaged  in  the 
common  object,  be  liable  jointly  for  the  damages  sustained  by  the  injured  party. 
However  that  may  be.  we  tliink  no  difficulty  exists  in  the  present  case.  The  rule 
as  stated  by  the  presiding  judge,  was  stated  with  entire  accuracy  and  under 
proper  limitations." 


24  DEFINITION   AND   NATURE   OF    TRESPASS.  §  24. 

trespass,  in  opening  the  box  and  taking  the  sovereign,  it  was 
hehl  that  proof  of  these  facts  was  evidence  to  go  to  the  jury 
of  A.'s  participation  in  the  wrong.^  Wall  v.  Osborn^  was 
an  action  of  trespass  for  entering  upon  the  plaintiff's  land 
and  taking  down  and  carrying  away  a  mill  standing  thereon. 
It  appeared  that  the  defendant  sold  the  mill  to  one  C,  telling 
him  that  if  he  w^anted  help  in  taking  down  and  removing 
the  mill,  he  would  have  a  man  to  assist  him.  The  mill  was 
afterwards  taken  down  by  C,  but  whether  or  not  the  de- 
fendant furnished  any  aid  was  not  shown.  The  jury  were 
instructed  by  the  Chief  Justice  of  the  New  York  Superior 
Court,  in  which  the  case  was  tried,  that  the  sale  of  the  mill 
to  C,  and  the  offer  of  the  defendant  to  help  him  in  taking  it 
away,  w^as  not  such  a  participation  in  the  act  of  removal  as 
to  make  the  defendant  a  trespasser.  A  judgment  having 
been  found  for  the  defendant,  the  Supreme  Court,  in  setting 
it  aside,  said:  "The  defendant  in  this  case,  by  undertaking 
to  sell  the  plaintiffs  property,  was  the  moving  cause  of  the 
injury  sustained  by  the  plaintiff.  On  the  supposition  that 
the  purchaser  is  perfectly  responsible,  the  plaintiffs  have 
been  put  to  trouble  and  expense  for  which  the  defendant 
should  be  lial:)le.  If  the  law  were  otherwise,  and  if  in  such 
case  a  purchaser  was  irresponsible,  the  owner  might  lose  his 
property  altogether."  * 

§  24.  The  principle  that  in  trespass  all  are  liable  who 
participate  in  the  act,  will  sometimes  subject  a  person  as  a 
trespasser  who  has  merely  delegated  an  authority  to  be  ex- 
ecuted for  his  benefit.  This  is  the  ground  upon  which  the 
real  party  to  a  suit  is  usually  made  responsible  for  the  acts 


'  Joues  V.  Morrell,  1  Car.  &  K.  266.  "  12  Wend.  39. 

*  Where  the  owner  of  land  wilfully  suffers  a  nuisance  to  be  created  or  con- 
tinued by  another  on  or  adjacent  to  his  premises  in  the  carrying  on  of  a  business 
for  his  benefit,  and  under  his  authoritj',  he  is  liable  for  any  injury  to  third  per- 
sons resulting  therefrom  (Clark  v.  Fry,  8  Ohio,  N.  S.  '358). 

A  person  who,  while  professing  to  sell  his  own  trees,  points  out  to  the  buyer 
timljer  growing  on  the  land  of  the  adjacent  proprietor,  is  liable  to  such  pro- 
prietor in  damages,  for  the  trees  which  the  buyer  is  thereby  induced  to  cut  and 
carry  away  (Kolb  v.  Bankhead,  18  Texas,  228). 


§  25.  INCITING  OR  AIDING  THE  COMMISSION  OF  TRESPASS. 


lii) 


of  liis  attorney  or  ministerial  officers  employed  by  him.^  So 
completely  is  the  person  who  gives  directions  to  an  officel* 
identified  ^vith  the  acts  of  the  officer,  that  he  is  frequently 
responsible,  where  the  officer  is  excused.  Such  is  the  case  in 
the  familiar  instances  of  an  arrest,  or  a  levy  upon  goods  at 
the  request  of  a  party  upon  an  execution  in  his  favor,  valid 
on  its  face,  but  unauthorized  by  a  judgment.^ 

§  25.  Whenever  an  officer  has  power  to  execute  process 
in  a  particular  manner,  his  authority  is  a  justification  of  all 
who  come  in  his  aid."^  But  if  his  authority  is  not  sufficient 
to  justify  him,  neither  can  it  justify  those  who  aid  him.  He 
has  no  power  to  command  others  to  do  an  unlawful  act. 
They  are  not  bound  to  obey  him ;  and  if  they  do,  it  is  at 
their  peril.  The  only  hardship  in  the  case  is,  that  they  are 
bound  to  know  the  law.  But  that  obligation  is  universal.^ f 
Where  a  lieutenant  and  private  in  the  United  States  army, 

'  Ross  V.  Fuller,  12  Vt.  265.  '  Coats  v.  Darby,  2  N.  Y.  517. 

'  Elder  v.  Morrison,  10  Wend.  128;  post,  §  160. 

*  The  defendant  maj'  show  that  the  act  was  done  under  the  orders  of  any- 
civil  or  military  officer  of  the  State,  or  of  the  United  States,  to  aid  in  suppress- 
ing rebellion  (Hess  v.  Johnson,  '^  W.  Va.  645 ;  Durand  v.  Hollins,  4  Blatchf.  C. 
C.  451. 

Where  in  an  action  of  trespass  against  a  soldier,  the  defendant  pleads  in  jus- 
tification that  he  acted  under  the  command  of  his  superior  officer,  he  need  not 
give  in  evidence  the  commission  of  the  officer,  but  may  prove  that  the  latter  was 
in  command  of  a  military  force,  that  he  assumed  to  command  as  an  officer,  and 
was  recognized  as  such  (Hardage  v.  Coffinan,  24  Ark.  256). 

t  If  a  militia  officer  issues  a  paper  purporting  to  be  a  warrant,  but  which  is 
void,  directing  the  clerk  of  the  company  to  seize  the  property,  or  arrest  the  body 
of  a  delinquent  soldier,  the  clerk  is  under  no  obligation  to  obey  it  as  a  precept. 
It  is,  however,  a  command,  and  is  as  imperative,  at  least,  as  any  verbal  com- 
mand or  request  made  to  an  individual  to  commit  a  trespass.  Neither  command 
need  be  obeyed.  And  if  the  trespass  be  committed  in  either  case,  the  person 
directing  it,  and  the  agent,  are  alike  liable  (Batchelder  v.  Whitcher,  9  N.  Hamp. 
239). 

It  is  not  a  defense  that  the  trespass  was  committed  by  order  of  the  authorities, 
and  in  pursuance  of  the  law  of  a  State  engaged  in  rebellion  (Lively  v.  Ballard,  2 
W.  Va.'496).  Where,  however,  the  owner  of  land  despoiled  by  the  army  of  the 
late  confederate  States,  brought  an  action  of  trespass  against  certain  citizens  for 
aiding  in  the  spoliation,  it  was  proved  that  such  assistance  was  rendered  under 
a  military  requisition,  and  the  evidence  tended  to  show,  that  the  plaintiff  being 
told  by  the  commanding  officer  that  all  damages  should  be  paid,  acquiesced  ;  the 
damages  were  assessed,  but  whether  they  were  ever  paid,  did  not  appear;  it  was 
held  that  the  defendants  were  not  liable  (Baker  v.  Wright,  1  Bush,  Ky.  500). 

In  order  to  establish  the  defense  of  duress,  the  defendant  must  show  that  he 
liad  no  reasonable  means  of  escaping  from  the  force  or  fear  before  the  trespass 
was  committed  (Cunningham  v.  Pitzer,  2  W.  Ya.  264). 


26  DEFINITION   AND   NATURE   OF   TRESPASS.       §§  2G,  27. 

acting  under  orders  of  their  captain,  took  from  a  person  two 
horses,  it  was  hehl  that  they  were  trespassers.^  In  Leonard 
V.  Stacy,'  the  defendant  pleaded  in  justification  of  a  trespass 
that  the  goods  were  taken  by  an  officer  by  virtue  of  a  writ 
of  replevin,  and  that  he  assisted  the  officer.  The  plaintiff 
replied  that  before  the  goods  were  taken  away,  he  claimed 
property  in  them,  and  gave  notice  thereof  to  the  defendant ; 
and  the  fact  being  so  found  by  the  jury,  the  plaintiff  had 
judgment.  There  the  fault  was  the  taking  away  the  goods, 
after  such  a  claim  of  property,  without  a  writ  de  'proiJrietate 
probanda  /  and  no  question  was  made  whether  the  defendant 
was  acquainted  with  the  course  prescribed  by  law  in  such  a 
case.  It  was  considered  that  as  the  act  of  the  officer  was 
unlawful,  all  concerned  with  him  in  that  act  were  liable  to 
the  action  of  the  parties  aggrieved. 

§  26.  If  a  strano'er  comes  in  aid  of  an  officer  in  executing^ 
legal  process,  and  the  officer  afterwards  omits  to  return  the 
writ,  or  by  any  other  subsequent  abuse  of  his  authority  be- 
comes a  trespasser  ab  initio^  this  shall  not  prejudice  the 
stranger,  nor  make  him  a  trespasser.  The  same  principle 
applies  to  bailiffs  who  serve  a  writ  by  virtue  of  a  precept 
from  the  sheriff.  If  such  a  WTit  be  not  duly  returned  by 
the  sheriff,  he  is  a  trespasser,  but  the  bailiff  is  not  punish- 
able.^ 

§  27.  A  creditor  or  other  assistant  of  an  officer,  acting^  in 
good  faith,  and  intending  only  to  discharge  a  legal  duty,  will 
not  involve  himself  in  any  responsibility  for  illegal  and  un- 
authorized acts  of  the  officer  in  which  he  took  no  part,  and 
to  which  he  did  not  assent.  If,  for  instance,  the  creditor 
should  go  T\dtli  the  officer  for  the  puipose  of  assisting  him 
to  levy  on  property  for  the  payment  of  his  debt,  and  he 
should  direct  the  levy  to  be  made  on  certain  property  alone, 
but  do  not  assent  to,  or  approve  of,  anything  that  is  done 

'  Wilson  V.  Franklin,  63  N.  C.  259 ;  and  see  Hogue  v.  Penn,  3  Bush,  Ky.  663. 
'  6  Mod.  69. 

'  Ovstead  v.  Shed,    13  Mass.  505 ;  s.  c.  13  lb.  520 ;  Wheelock  v.  Archer,  26 
Vt.  380. 


§  28.     RATIFICATION   AND  ADOPTION   OF   WRONGFUL  ACT.  27 

by  the  officer  relative  to  other  property,  be  will  not  be 
responsible  for  tbe  officer's  conduct  in  relation  to  the  latter.^ 
But  any  abuse  by  tbe  party,  especially  if  be  intermeddle 
officiously,  will  make  bim  a  trespasser.  One  wbo  unneces- 
sarily accompanied  a  deputy  sberiff,  to  assist  bim  in  seizing 
goods  under  an  execution,  and  wbo,  at  a  late  bour  of  tbe 
nigbt,  and  against  tbe  will  of  tbe  party  rigbtfully  in  posses- 
sion of  goods,  entered  bis  bouse  witbout  tbe  command  of  tbe 
deputy,  aroused,  alarmed,  and  insulted  bis  family,  and  forci- 
bly took  bis  goods  away,  was  beld  to  bave  committed  a  tres- 
pass witbout  justification  or  excuse.^ 

7.  Ratification  and  adoption  of  tcrorigfid  act. 

§  28.  A  tbing  done  for  anotber  by  a  person  not  assum- 
ing to  act  for  bimself,  but  for  sucb  otber  person,  tbougb 
witbout  any  precedent  autbority  whatever,  becomes  tbe  act 
of  tbe  principal,  if  subsequently  ratified  by  bim.  In  tbat 
case,  tbe  principal  is  bound  by  tbe  act,  wbetber  it  be  to  bis 
detriment  or  advantao;e,  and  wbetber  it  be  founded  on  a  tort 
or  a  contract,  to  tbe  same  extent,  and  witb  all  tbe  conse- 
quences wbicb  follow  from  tbe  same  act  if  done  by  bis 
previous  autbority.  Sir  Edward  Coke^  says:  "He  tbat  re- 
ceivetb  a  trespasser  and  agrees  to  a  trespass  after  it  is  done, 
is  no  trespasser,  unless  tbe  trespass  was  done  for  bis  use,  or 
for  bis  benefit,  and  tben  bis  agreement  subsequent  amountetb 
to  a  precedent  commandment."  Sucb  was  the  precise  dis- 
tinction taken  in  the  Year  Book,^  wbere  it  was  beld  that  if 
a  bailiff  took  a  beriot,  claiming  property  in  it  bimself,  tbe 
subsequent  agreement  of  tbe  lord  would  not  amount  to  a 
ratification  of  bis  autbority  as  bailiff  at  tbe  time;  but  if  be 
took  it  at  tbe  time,  as  bailiff  of  tbe  lord,  and  not  for  bimself, 
witbout  bowever  any  command  of  tbe  lord,  yet  the  subse- 
quent ratification  by  the  lord  made  bim  bailiff  at  the  time.^ 


'  Johnson  v.  Stone,  40  N.  Hamp.  197. 

»  McElhenny  v.  Wylie,  3  Strobli.  284. 

*  4  Inst.  317.  *  Hen.  4,  foi.  35. 

"  Hull  V.  Pickersgill,  1  B.  &  B.  83;  Woolen  v.  Wright,  1  II.  &  C.  554. 


28  DEFINITION   AND   NATURE   OF   TRESPASS.       §§  29,  30. 

But  ill  order  to  make  a  person  a  trespasser,  by  the  I'atifica- 
tiou  and  adoption  of  a  wrong  committed  in  his  name  and 
for  bis  benefit,  it  must  be  proved  that  tlie  act  was  ratified 
and  adopted  by  him  with  full  knowledge  of  its  being  a  tres- 
[)ass,  or  of  its  being  tortious  ;  or  it  must  be  shown  that  in 
ratifying  and  taking  the  benefit  of  the  act,  he  meant  to  take 
upon  himself,  without  inquiry,  the  risk  of  any  irregularity 
which  mio-ht  have  been  committed.^  Whether  the  assent  to 
a  trespass  after  it  has  been  committed  will  make  the  party 
assenting  a  trespasser  ah  initio,  in  cases  of  mere  personal  tort, 
has  been  doubted.  It  certainly  w^ould  not  have  that  effect 
unless  the  assent  were  clear  and  explicit,  and  founded  on  full 
knowledge  of  the  previous  trespass.^ 

8.  Indemnity  of  innocent  lorong-doer. 

§  29.  Courts  will  not  lend  their  aid  to  a  person  who 
founds  his  cause  of  action  upon  an  immoral  or  illegal  act. 
It  is  a  general  doctrine  of  the  common  law  that  there  can  be 
no  reimbursement  or  contribution  in  such  a  case,  whether 
the  parties  are  principals  or  agents.*  Thus,  if  A.  recover  in 
tort  against  two  defendants,  and  levy  the  w^hole  damages  on 
one,  that  one  cannot  recover  a  moiety  against  the  other  for 
his  contribution.^ 

§  30.  The  distinction  taken  between  promises  of  indem- 
nity that  are  and  those  which  are  not  void  is,  that  if  the  act 
directed  or  agreed  to  be  done  is  known  at  the  time  to  be  a 
trespass,  a  promise  to  indemnify  will  be  illegal  and  void; 
but  that  if  it  be  not  known  at  the  time  to  be  a  trespass,  such 
promise  is  valid,  whether  express  or  implied.*  f     Where  a 

'  Roe  V.  Birkenhead,  7  Exch.  36 ;  Wilson  v.  Barker,  1  Nev.  &  M.  409 ;  Wilson 
V.  Tummou,  12  L.  J.  C.  P.  307. 

-  Adams  V.  Freeman,  9  Johns.  117. 

=  St.  John  V.  St.  John's  Church,  15  Barb.  346. 

''  Merryweather  v.  Nixan,  8  T.  R.  186;  Coventry  v.  Barton,  17  Johns.  142  ; 
Turner  v.  Jones,  1  Lansing,  147. 

*  It  is  otherwise  as  to  fees  paid  to  counsel  (Percy  v.  Clary,  32  Md.  245). 

t  There  seems  to  be  some  conflict  of  authority  as  to  whether,  in  such  case, 
the  agent  having  followed  the  directions  of  his  principal,  the  law  will  imply  a 


§  31.  INDEMNITY   OF   INNOCENT  WKONG-DOER.  29 

mastor  directed  his  servant  to  enter  on  the  land,  claimina; 
and  declaring  it  to  be  his  own  ;  and  the  servant,  relying  on 
the  truth  of  the  declaration,  entered ;  but,  in  fact,  the  land 
belonged  to  another  person ;  it  was  held  that  the  act  of  the 
servant  was  a  good  consideration  for  the  promise  to  indeni- 
mfy}  And  where  an  agent,  acting  under  the  instructions  of 
his  principal,  cut  timber  by  mistake,  on  land  that  did  not 
belong  to  his  principal,  and  the  latter  received  it,  it  was  held 
that  the  agent  might  I'ecover  of  his  principal  what  he  had 
been  obliged  to  pay  for  tlie  trespass.^ 

§  31.  If  A.  make  a  valid  promise  to  indemnify  B.  against 

promise  of  indemnity.  In  Dunlap's  Paley  on  Agency,  lo3,  it  is  said  that,  al- 
though it  was  not  at  the  time  known  to  be  a  trespass,  yet  if  it  eventually  turns 
out  to  be  so,  a  promise  of  indemnity  will  not  be  implied.  The  author,  in  this 
proposition,  excludes  any  question  of  misrepresentation  or  fraud  by  the  prin- 
cipal, by  which  the  agent  was  innocently  drawn  into  the  commission  of  the  act. 
On  the  other  hand,  in  Story  on  Agency,  §  33!),  it  is  said  that  "there  is  no  differ- 
ence whether  there  is  a  promise  of  indemnity  or  not;  for  the  law  will  not  en- 
force a  contract  of  indemnity  against  a  known  and  meditated  wrong.  Where  the 
agent  acts  innocently  and  without  notice  of  the  wrong,  the  law  will  imply  a 
promise  on  the  part  of  the  principal  to  indemnify  him."  The  cases  cited  by 
Judge  Story  are  those  where  the  conduct  and  representations  of  the  principal 
were  calculated  to  induce  the  agent  to  believe  that  he  was  acting  innocently, 
while  the  principal  knew  he  was  not.  Many  of  them  are  cases  where  an  auc- 
tioneer has  sold  goods  which  were  in  the  possession  of  the  principal,  and  which 
he  represents  as  belonging  to  him,  knowing  it  to  be  otherwise,  when  afterward 
it  turns  out  that  he  had  no  title,  and  the  agent  is  sued,  and  a  judgment  obtained 
against  him  for  their  value.  In  these  cases  the  principal  would  be  permitted  to 
practice  a  fraud  upon  the  agent  were  he  not  held  liable,  if  the  law  did  not  re- 
quire him  to  make  indemnity.  In  Adamson  v.  Jarvis.  4  Bing.  6G,  Best,  Ch.  J., 
said  ;  "  From  reason,  justice,  and  sound  policy,  the  rule  that  wrong-doers  cannot 
have  redress  or  contribution  against  each  other,  is  confined  to  cases  where  the 
person  seeking  redress  must  be  presumed  to  have  known  that  he  was  doing  an 
unlawful  act.  In  Turner  v.  Jones,  1  Lansing,  147,  Marvin,  P.  J.,  referring  to 
Coventry  v.  Barton,  supra,  said:  "In  that  case,  the  evidence  tended  to  show  an 
express  promise  ;  but  the  learned  judge  does  not  notice  any  distinction  between 
an  express  and  implied  promise.  It  is  a  rule  that  Avhere  there  is  an  express 
j)romise,  the  law  will  not  imply  one.  The  parties  have  chosen  to  fix  the  terms 
of  liability.  But  in  the  absence  of  an  express  promise,  I  understand  it  to  be  a 
general  principle  to  imply  a  promise,  if  the  facts  are  such  as,  in  equity  and  good 
conscience,  to  require  a  promise.  *  *  *  What  can  be  more  equitable  and 
just  than  that  he  who  claims  a  riglit  to  a  thing,  or  to  do  an  act,  and  employs 
another  to  take  the  thing  or  do  the  act — such  person  believing  that  it  was  need- 
ful thus  to  .serve  his  employer — should  indemnify  the  person  employed,  in  case 
it  should  turn  out  that  his  employer  could  not  defend  him  successfully  in  an 
action  brought  by  a  third  person  ?  "  (Referring  to  St.  John  v.  St.  John's  Church, 
15  Barb.  34(5;  Howe  v.  Bufialo,  N.  Y.  &  E.  R.  R.  Co.  38  Barb.  124;  s.  c.  37  N. 
Y.  R.  297;  and  see  note  to  Paley  on  Agency,  p.  153). 

'  Allaire  v.  Ouland,  2  Johns.  Cas.  53. 

"  Randall  v.  Rich,  11  Mass.  494;  Payson  v.  Whitcomb,  15  Pick.  212;  Drum- 
mond  v.  Humphreys,  39  Maine,  347. 


30  DEFINITION   AND   NATURE   OF   TRESPASS.  §  31. 

a  trespass,  and  B.  employ  others  to  act  for  him  in  the  trans- 
action, and  B.  is  compelled  to  pay  his  employees  damages 
recovered  against  them  for  the  trespass,  A.  will  be  liable  to 
B.  therefor.^  * 


'  Stone  V.  Hooker,  9  Cowen,  154. 

*  The  above  case  was  an  action  on  a  promise  to  indemnify  the  plaintiff  in 
taking  possession  of  a  fishing  ground  belonging  to  one  Mason.  It  was  proved 
that  tlie  plaintiff  was  employed  bj'  the  defendant  to  take  possession;  that  he  en- 
gaged a  number  of  persons  under  iiiin ;  that  possession  Avas  taken  in  a  peaceable 
manner  by  drawing  a  seine  around  it ;  and  that  no  damage  was  done  to  any 
person  or  property;  that  after  they  had  taken  possession,  Mason  came  and 
attempted  to  cut  their  ropes;  and  that  they  resisted  and  prevented  him  from 
destroying  their  seine.  Evidence  was  introduced  to  show  that  one  Hounsfield 
was  tiie  reputed  owner,  and  the  defendant  the  reputed  agent,  and  that  the 
plaintiff'  so  considered  him.  But  the  promise  was  express  by  the  defendant 
tliat  he  would  indemnify;  and  general  reputation  alone  was  relied  upon  to  prove 
the  agency.  Mason  sued  Staten  and  Winch,  two  of  tlie  persons  employed  by 
the  plaintiff,  and  recovered.  Staten  sued  the  plaintiff,  and  recovered  on  his 
(the  plaintiff's)  promise  of  indemnity;  which  judgment  the  plaintiff  paid, 
ilason  also  obtained  a  judgment  by  confession  against  E.  Sawyer  and  E.  Sawyer, 
junior,  for  the  same  cause.  Objection  was  made  to  this  judgment,  on  the 
ground  that  it  was  by  confession.  It  was  proved  that  the  defendant  had  notice 
of  the  causes,  and  was  asked  to  defend  them,  but  did  not.  Two  questions  were 
presented  for  the  consideration  of  the  court:  1.  Whether  tlie  promise  was  to 
indemnify  against  an  unlawful  act.  If  not,  then  2.  Whether  tlie  defendant 
was  liable,  in  consequence  of  the  recovery  of  the  judgment  of  Mason  against 
the  Sawyers — that  judgment  having  be  obtained  by  confession.  A  verdict  hav- 
ing been  found  for  the  plaintiff  in  the  court  below,  the  Supreme  Court. refused 
to  disturb  it. 


CHAPTEH    11. 


TRESPASS    A3    A    RE^MEDY. 

1.  When  the  action  will  lie. 

2.  Action  for  wrong  committed  I)y  married  woman. 

3.  Redress  for  the  wrongful  acts  of  minors. 

4.  Liability  of  master  for  wrongful  acts  of  servant. 

5.  Liability  of  principal  for  wrongful  acts  of  agent. 

6.  Responsibility  of  sheriff  for  the  wrongful  acts  of  his  deputy. 

7.  Action  against  corporations. 

8.  Liability  of  partners. 

9.  Action  by  and  against  executors. 

10.  Liability  of  persons  whose  authority  is  derived  from  statute. 
IL   Action  in  the  case  of  joint  wrong-doers. 

12.  Settlement  of  claim  for  damages. 

13.  When  party  confined  to  remedy  given  by  statute. 

14.  Declaration. 

15.  Plea. 

16.  Replication. 

17.  New  assignment. 

18.  Right  to  open  and  close. 

19.  Evidence. 

20.  Damages. 

21.  Costs. 

22.  Verdict. 

23.  Amendment  after  verdict. 

24.  Judgment. 

25.  Writ  of  error. 

26.  New  trial. 

1.    Whe7i  the  action  id  ill  lie. 

§  32.  To  maintaiu  the  action,  there  must  not  only  have 
been  unlawful  force,  but  the  injury  complained  of  must  have 
been   the   immediate   consequence    of    the   unlawful   act.^  * 

'  Barber  v.  Barnes,  2  Brevard,  491 ;  Adams  v.  Hemmenway,  1  Mass.  145 ; 
antey  §  2. 

*  Blackstone  (3  Com.  123)  says:  "  It  is  a  settled  distinction,  that,  where  an 
act  is  done  which  is  in  itself  an  immediate  injury  to  another's  person  or  property, 
there  the  remedy  is  usually  by  an  action  of  trespass  vi  et  armis  ;  but  where  there 
is  no  act  done,  but  only  a  cul])able  omission,  or  where  the  act  is  not  immediately 
injurious,  but  only  by  consequence  and  collaterally,  there  no  action  of  trespass 
vi  et  armis  will  lie,  l)ut  an  action  on  the  special  case  for  the  damages  consequent 
upon  such  omission  or  act." 

"Though  time  has  softened  down  the  differences  between  the  actions  of  tres- 
pass and  trover,  or  other  actions  of  the  case,  yet,  looking  back  upon  them,  we 
find  that  they  are  in  their  natures,  as  tlie  pleaders  phrase  it,  essentially  distinct. 
The  one  being  for  a  wrong  committed  by  the  direct  force  of  the  malfeasor,  in- 


32  TRESPASS    AS  A   REMEDY.  §  32. 

When  the  injury  is  directly  and  forcibly  inflicted, — as  where 
a  blow  is  given  to  a  person,  or  violence  done  to  his  beast  or 
other  property, — the  party  aggrieved  has  generally  no  choice 
of  actions,  and  trespass  is  his  only  remedy.  But  the  neces- 
sity of  suing  in  trespass  extends  no  further,  though  the  injury 
may  have  followed  the  forcible  act  without  the  intervention 
of  any  voluntary  and  responsible  agency.  Where  he  has 
sustained  a  forcible  injury,  effected  by  means  flowing  from 
the  act  of  the  defendant,  but  not  operating  by  the  very  force 
and  impulse  of  that  act,  he  may  sue  in  trespass,  constructively 
treating  those  means  as  attached  to,  and  forming  part  of,  the 
defendant's  act,  and  thus  brino-ino-  that  act  into  immediate 
connection  with  the  injury ;  or,  waiving  all  artificial  views  of 
the  matter,  he  may  adopt  the  other  form  of  action,  and  treat 
the  injury  as  consequential.^  * 


eluded  not  only  redress  to  the  jjlaiutiff.  l>ut  punishment  to  the  defendant;  and 
tlie  judgment  was  a  ccqnatm%  ujjon  wliich  the  person  of  the  defendant  was  taken 
and  imprisoned  until  he  paid  a  tine.  Upon  tiie  other  hand,  when  a  party  was 
suljjected  upon  a  tort  not  committed  with  force,  as  in  trover  or  other  actions 
upon  the  case,  the  judgment  was  a  misericordia,  and  the  defendant  was  amerced, 
that  is,  subjected  to  a  nominal  fine  merely.  This  difference  in  the  nature  of  the 
actions,  though  there  is  now  neither  fine  nor  amercement,  in  legal  idea  so  sejja- 
rates  them,  tliat  counts  in  trespass  and  trover  cannot  be  joined  in  the  same  decla- 
ration, as  counts  in  actions  of  the  same  nature  may  be.  If  it  should  be  said  to 
be,  at  this  day,  theoretical  ratlier  than  practical,  it  distinctly  marks  the  bound- 
ary between  cliff'erent  kinds  of  wrong  and  the  different  remedies  appropriate  to 
them  "  (Ames,  C.  J.,  in  Hunt  v.  Pratt,  7  R.  I.  283). 

In  Massachusetts,  according  to  the  new  practice,  there  is  no  action  of  Ires- 
pass  in  terras;  but  the  action  of  tort  embraces  all  actions  of  trespass  (Willard  v. 
Baker.  2  Gray,  336;  Sts.  of  Mass.  of  1852,  ch.  312,  §  1). 

In  Virginia,  it  was  held  in  an  early  case,  that  tlie  fraudulently  opening  of  cer- 
tain packages  in  the  care  of  A.  and  belonging  to  B.,  and  taking  therefrom  a  part 
of  their  contents,  was  a  trespass  only  (Cook  v.  Darby,  4  Munf.  444), 

'  Waterman  v.  liall,  17  Vt.  128. 

*  In  Waterman  v.  Hall,  supra,  the  injury  complained  of  consisted  in  driving 
the  plaintiff  's  mare  upon  a  log  fence,  whereby  she  was  so  much  injured  that  she 
died,  and  it  was  held  tliat  either  trespass  or  case  would  lie. 

Ogle  et  al.  v.  Barnes  et  al.  8  Term.  R.  188,  was  an  action  of  trespass  on  the 
case  for  an  injury  done  by  the  incautious  and  negligent  steering  of  the  defend- 
ant's ship,  whereby  she  sailed  against  the  ship  of  the  plaintiffs.  The  plaintifls 
having  obtained  a  verdict,  the  defendants  moved  in  arrest  of  judgment  that  the 
action  was  misconceived.  The  rule  was,  however,  discharged.  It  did  not  ap- 
pear that  the  injury  resulted  from  the  personal  acts  of  the  defendants,  or  that 
they  were  on  board  the  ship  at  the  time;  and  altliough  it  was  said  that  they  had 
the  care,  direction  and  management  of  the  vessel,  this  might  have  been  through 
the  medium  of  other  persons.  Grose,  J.,  remarked  that  every  presumption  was 
to  be  made  in  favor  of  the  verdict ;  that,  at  least,  nothing  was  to  be  presumed 
against  it.  And  on  the  same  principle,  Lawrence,  J.,  said  :  "  The  negligent 
and  imprudent  management  of  the  defendant's  ship  does  not  imply  that  any  act 


§  33.  WHEN    THE  ACTION   WILL  LIE.  33 

§  33.  It  would  scarcely  serve  any  useful  purpose  to  at- 
tempt, in  this  place,  a  summary  of  all  the  numerous  inva- 
sions of  right  entitling  the  party  aggrieved  to  this  species  of 
redress.  Each  will  be  discussed  hereafter  under  its  appro- 
priate head.  A  few  miscellaneous  examples  may  be  enumer- 
ated as  follows:  Every  unwarrantable  entry  on  another's 
land ;  ^  casting  stones,  rubbish  or  materials  of  any  kind  there- 
on ;  throwing  water  out  of  a  pail  into  another  man's  yard ; 
fixing  a  spout  so  as  to  discharge  water  upon  another's  land ; 
suffering  filth  to  ooze  through  a  boundary  wall,  and  to  run 

was  done  by  them ;  after  having  been  guilty  of  the  negligence  which  led  to  the 
mischief,  they  may  have  done  everything  in  their  power  to  avoid  the  mischief; 
and  then,  the  running  against  the  plaintiff's  vessel  may  have  been  owing  to  the 
wind  and  tide.  If  it  had  appeared  in  evidence  that  the  defendants  had  wilfully 
'  done, the  act,  the  plaintiff  must  have  been  nonsuited." 

The  distinction  between  those  trespasses  for  which  there  is  a  private  remedy 
only  and  those  for  which  there  may  be  a  public  prosecution,  is  not  laid  down  in 
the  books  with  much  accuracy  or  precision.  It  seems,  however,  to  be  clear, 
that  though  every  trespass  which  is  a  disturbance  of  the  peace  is  indictable,  a 
mere  trespass,  which  is  the  subject  of  a  civil  action,  cannot  be  converted  into  an 
indictable  offense.  It  appears  to  be  the  doctrine  of  Kex  v.  Storr,  3  Burr.  1698, 
and  of  Rex  v.  Baker,  3  Burr,  1731,  that  no  indictment  lies  at  common  law  for  a 
trespass  committed  to  land  or  goods  unless  there  be  a  riot,  or  a  forcible  entry... 
According  to  those  cases,  a  mere  invasion  of  private  property,  without  a  dis- 
turbance of  the  peace,  does  not  concern  the  public,  but  is  a  private  injury  only 
for  which  an  action  of  trespass  lies.  In  England,  the  killing  or  maiming  cattle 
belonging  to  another  from  motives  of  malice  or  revenge  to  the  owner,  is  made 
penal  by  statute.  In  Ranger's  Case,  2  East's  P.  C.  1074,  which  was  an  indict- 
ment at  common  law  for  unlawfully,  with  force  and  arms,  and  against  the  peace, 
maiming  a  horse,  it  was  held  that  the  indictment  contained  no  indictable  offense, 
for,  if  the  offense  was  not  within  the  statute,  the  act  in  itself  was  only  a  trespass.  . 

It  would  hardly  do  to  act  upon  the  distinction  between  actual  and  implied 
force,  and  to  hold  that  every  trespass  to  property  where  there  is  actual  force  is  ; 
indictable.  Such  a  doctrine  would  make  almost  every  trespass  or  injury  to  pri^ 
vate  property  the  subject  of  an  indictment,  and  would  give  to  the  courts  a  fear- 
ful and  alarming  jurisdiction,  which  could  be  exercised  in  general  to  little  other 
purpose  than  vexation  and  oppression.  In  exercising  criminal  jurisdiction  in 
common  law  cases,  courts  should  be  under  the  guidance  and  restraint  of  estab- 
lished principles  and  precedents,  and  should  not  allow  themselves  to  go  beyond 
them.  An  undefined  jurisdiction,  or  an  unlimited  discretion  in  criminal  cases, 
is  an  arbitrary  and  dangerous  power  incompatible  with  civil  liberty,  and  ouo-hfc 
never  to  be  assumed  or  exercised;  and  unless  an  act  is  mude  criminal  by  some 
statute,  or  is  clearly  defined  to  be  an  offense  by  the  connnon  law,  it  ought  not  to 
be  treated  or  punislied  as  such.  The  civil  remedy  which  the  law  affords  for  tres- 
passes to  property  is,  in  ordinary  cases,  a  sufficient  corrective  (State  v.  Wheeler 
a  Vt.  344). 

Where  one  is  deceived  by  a  trespasser  through  a  pretense  of  legal  authority, 
his  consent  to  it  will  not  deprive  him  of  his  legal  remedy  (Bagwell  v.  Jamison, 
Cheves,  349). 

'  3  Blk.  Com.  209;  3  Selwyn's  N.  P.  1101;  Wells  v.  Howell,  19  Johns.  385; 
Pfeiffer  V.  Grossman,  10  III.  53;    Rowe  v.  Bradley,  12  Cal.  226;    Harry  v.  Gra- 
ham,  6  Jones'  Law,  N.  C.  400. 
Vol.  L— 3 


M  TRESPASS    AS  A  REMEDY.  §  34. 

over  the  adjoining  premises;'^  standing  on  one's  own  ground, 
or  in  the  street,  and  with  missiles  breaking  another's  house ;  ^ 
the  holding  over  and  claiming  title  by  a  tenant ;  ^  scratching 
the  panel  of  another's  carriage ;  *  unlawfully  holding  to 
bail ;  ^  the  refusal  of  the  collector  of  the  revenue  to  deliver 
goods  after  a  tender  of  the  duties;^  taking  away  one's 
child ;  ^  enticing  away  or  driving  off  slaves,  though  the  de- 
fendant did  not  touch  theni;^  harboring  and  concealing  a 
a  runaway  slave.^  ''^ 

§  34.  An  action  of  trespass  is  proper,  where  the  injury 
is  by  the  direct  act  of  the  party,  though  done  negligently ;  ^^ 
and  in  such  cases  the  person  aggrieved  may  usually  resort 
either  to  trespass  or  to  an  action  on  the  case."  Trespass  will 
lie  for  cutting  down  trees  on  one's  own  premises  whereby 
one  of  them  accidentally  falls  on  his  neighbor's  land,  though 
there  be  no  grass  or  vegetables  growing  thereon  ;  ^^  for  injury 
to  a  canal-boat  by  being  run  foul  of  by  a  steamboat ;  ^'^  against 
the  master  of  a  vessel  for  damaging  a  fishing  net;^^  against 
the  captain  of  a  steamboat  for  injmy  to  the  person  of  another 
by  the  discharge  of  a  gun  on  board  by  his  command,  and  in 

'  Cox  V.  Burbridge,  13  C.  B.  N.  S.  430;  Mason  v.  Keeling,  1  Ld.  Raym.  606. 

^  Prewitt  V.  Clayton,  5  Monr.  4.  ^  Milhouse  v.  Patrick,  6  Rich.  350. 

'  Fouldes  V.  Willoughby,  8  M.  &  W.  540. 

'  Clay  V.  Sweet,  1  A.  K.  Marsh.  194.       "  Conard  v.  Pacific  Ins.  Co.  6  Pet.  362. 

'  Vaughan  v.  Rhodes,  2  McCord,  227. 

«  Tyson  v.  Ewiug,  3  J.  J.  Marsh.  185;  Glees  v.  Sikes,  1  Jones'  L.  N.  C.  310. 

^  Kennedy  v.  M'Arthur,  5  Ala.  151. 

'"  Strohl  V.  Levan.  39  Penn.  St.  R.  177;  Schuer  v.  Veeder,  7  Blackf.  342; 
Hardin  v.  Kennedy,  2  M'Cord,  277;  Johnson  v.  Castleman,  2  Dana,  377;  Case  v. 
Mark,  2  Ham.  169. 

^'  Brennau  v.  Carpenter,  1  R.  I.  474;  Blin  v.  Campbell,  14  Johns.  432. 

'^  Nensorn  v.  Anderson,  2  Iredell,  42. 

''  Case  V.  Mark,  2  Ham.  169.  "  Post  v.  Munu,  1  South.  61. 

*  The  locating  of  a  railroad  through  land  so  as  greatly  to  injure  the  part  not 
taken,  does  not  constitute  trespass — it  not  appearing  that  the  road  could  have 
been  so  well  located  in  any  other  way  (Cleveland  &c.  R.  R.  Co.  v.  Stackhouse,  10 
Ohio,  N.  S.  567). 

A  cause  of  action  in  trespass  is  not  a  debt  within  the  contemplation  of  the 
bankrupt  act,  and  is  not  afl:ected  by  a  bankrupt  discharge.  Tiie  fact  that  a 
verdict  has  been  rendered,  does  not  alter  the  case.  Until  judgment  rendered 
there  is  no  debt  whicli  is  reached  by  the  discliarge.  This  has  been  repeatedly 
held  in  the  English  courts,  and  these  cases  have  been  followed  here  (Kellogg  v. 
Schuyler.  2  Denio,  73,  referring  to  Crouch  v.  Gridley,  6  Hill,  250), 


§  34.  WHEN    THE   ACTION  WILL   LIE.  35 

liis  presence,  though  the  injury  resulted  from  a  want  of  care 
merely ;  ^  but  not  in  behalf  of  the  owners  of  a  vessel  for  the 
shooting  of  the  captain,  whereby  the  voyage  was  delayed.^ 
Where,  during  a  war  between  England  and  France,  a  British 
-cruiser  chased  an  American  schooner,  supposing  her  to  be 
French,  and  upon  overhauling  her,  through  negligence,  ran 
into  and  sunk  her, — the  schooner  having  previously  hove  to, 
— it  was  held  that  an  action  of  trespass  lay  at  common  law, 
at  the  suit  of  the  master  of  the  schooner  against  the  com- 
mander of  the  British  vessel.^  When  the  negligence  is  gross, 
trespass  is  alone  appropriate.  Therefore,  where  quarries 
were  worked,  and  rocks  blasted  in  such  a  way  that  large 
quantities  of  rocks  and  stones  were  thrown  upon  the  dwell- 
ing-house and  premises  of  the  plaintiff,  breaking  the  doors 
and  windows,  it  was  held  that  the  remedy  was  trespass,  and 
not  an  action  on  the  case.*  When  visible,  tangible,  corporeal 
property  is  injured,  if  the  injury  be  direct,  immediate  and 
wilful,  trespass  is  the  j^i'oper  form  of  action,  although  such 
property  be  connected  with,  or  be  the  means  by  which  an  in- 
corporeal right  is  enjoyed.^* 


"  Rhodes  v.  Roberts,  1  Stew.  145.  ^  Adams  v.  Hemmenway,  1  Mass.  145. 

=  Percival  v.  Hickey,  18  Johns.  257.        *  Scott  v.  Bay,  3  Md.  431. 

'  Wilson  V.  Smith,  10  Wend.  324 ;  Wilson  v.  Wilson,  2  Vt.  68. 

*  In  Wilson  v.  Smith,  supra,  the  plaintiff  declared  in  case  for  wilfully  cutting 
and  removing  a  part  of  the  timbers  and  other  materials  composing  the  plaintiff's 
dam  across  the  Genessee  river.  At  the  circuit,  the  plaintiff*  was  nonsuited  on 
the  ground  that  he  ought  to  have  brought  trespass  and  not  case.  The  Supreme 
Court,  in  refusing  a  new  trial,  said:  ''The  ground  on  which  the  form  of  the 
action  was  endeavored  to  be  maintaiued  at  the  trial,  and  also  upon  the  argu- 
ment at  bar,  was,  that  the  right  to  erect  the  dam,  for  an  injury  to  which  the 
action  was  brought,  was  a  franchise,  an  incorporeal  hereditament;  and  that  for 
an  injury  to  property  or  right  of  that  description,  tresj^ass  will  not  lie.  The 
principle  here  adverted  to  does  not  apply  to  the  case.  The  right  to  erect  the 
dam  is  a  franchise.  It  is,  conferred  by  the  Legislature,  the  sovereign  power.  It 
is  an  incorporeal  right.  But  the  dam  itself  is  not  a  franchise;  nor  is  it  incorpo- 
real. The  right  to  keep  a  ferry,  or  to  erect  a  bridge,  or  to  navigate  a  particular 
river  or  lake  by  steam,  may  be  a  franchise.  But  the  bridge  itself,  or  the  boats 
and  machinery  employed  in  the  ferry,  or  the  navigation  of  the  river,  may,  not- 
withstanding, be  the  sujjjects  of  trespass." 

Althougli  as  a  general  rule,  for  an  injury  to  an  incorporeal  right  case  only 
will  lie,  yet  it  does  not  follow  that  because  a  right  is  metaphj'sical,  everything 
acquired  and  used  in  its  exercise  must  necessarily  partake  of  the  same  unsub- 
stantial nature.  The  distinction  was  taken  and  illustrated  by  Sutherland,  J.,  in 
Wilson  V.  Smith,  10  Wend.  324.  The  result  of  his  argument  is,  that  where  the 
property  injured  is  tangible,  though  the  right  to  use  it  in  a  particular  way  be  a 


36  TRESPASS   AS  A  REMEDY.  §§  35,  36. 

§  35.  One  may  maintain  trespass  for  an  act  wliich  lie 
has  no  right  to  do  himself.  As,  if  I  grant  to  a  man  a  private 
right  of  way  over  my  land,  and  he  should  dig  a  ditch  across 
the  place  where  the  right  of  way  is  granted,  I  can  maintain 
trespass  against  him  for  the  injury  done  to  the  land,  though 
I  have  no  right  to  dig  the  same  ditch,  because  it  would  ob- 
struct his  way.  Again,  suppose  I  let  to  a  man  a  meadow  to 
cut  and  carry  away  the  grass ;  if  he  should  plow  it  up,  I  can 
maintain  trespass  against  him  ;  yet  I  have  no  right  to  plow 
up  the  meadow  myself,  for  that  would  destroy  the  grass  to 
which  he  has  a  right.  Indeed,  in  all  cases  where  easements 
exist,  or  where  different  persons  have  different  rights  to 
occupy  the  same  land,  there  will  be  certain  acts  which  vio- 
late coexisting  rights  which  neither  party  may  do,  and  for 
which  each  has  his  remedy.^ 

§  36.  The  fact  that  the  trespass  was  committed  with  a 
felonious  intent  does  not  take  away  the  civil  remedy.^  In 
England,  the-  civil  right  to  sue  for  injuries  occasioned  by 
felonies  is  not  merged  or  destroyed,  but  suspended  until  con- 
viction or  acquittal.  It  is  there  said  to  be  the  duty  of  the 
party  injured  to  bring  the  offender  to  justice,  or  to  make 
some  effort  thereto,  and  that  until  that  duty  is  performed,  he 


franchise,  the  person  entitled  to  the  use  not  only  may,  but  must  bring  trespass, 
if  the  injury  be  direct.  In  The  Queen  v.  Soley,  2  Sal'k.  594;  s.  c.  11  Mod.  115, 
it  was  said  that  if  the  exercise  of  a  corporate  franchise  of  voting  for  officers  be 
hindered  by  noise  and  clamor,  it  is  a  trespass ;  and  several  old  books  were  cited, 
■which  show  that  the  violent  disturbance  of  another  in  the  use  of  any  franchise 
may  be  redressed  by  an  action  of  trespass.  In  the  Year  Book,  2  H.  4,  11,  it  is 
said  of  a  man  having  a  private  way.  if  another  disturb  him  by  a"  sword,  club,  or 
other  weapon,  he  may  declare  in  trespass.  In  Woolr.  on  Ways,  p.  58,  this  case 
is  cited  with  approbation.  A  man's  cattle  are  driven  from  a  common;  trespass 
lies  (1  Chit.  PI.  141).  In  Wilson  v.  Mi\ckreth,  3  Burr.  1824,  the  defendant  hav- 
ing dug  and  carried  away  turf  and  peat  which  the  plaintiff  had  an  exclusive 
right  to  dig  for  his  own  use,  in  the  soil  of  another  within  certain  boundaries, 
marked  by  mere  stones,  the  plaintiff  brought  trespass  quare  clausum /regit.  It 
was  objected  that  case  alone  would  lie.  Lord  Manstield  observed  that  there 
•wanted  nothing  to  answer  the  objection,  but  to  state  the  case.  He  said  the 
plaintiff's  right  was  separate,  butted,  and  bounded ;  a  separate  right  of  property 
to  take  the  profit  of  the  turf,  and  to  dig  it  for  that  purpose.  It  was  exclusive 
of  all  others,  and  the  defendant  had  disturbed  him. 

'  Peck  V.  Smith,  1  Conn.  103. 

»  Cannon  v.  Burris,  1  Hill,  S.  C.  372;  Nash  v.  Primm,  1  Mo.  178. 


§  37.  WHEN    THE    ACTION   WILL   LIE.  37 

cannot  maintain  an  action.^  In  New  York,  it  is  provided  by- 
statute  ^  that  the  right  of  action  of  any  person  injured  by 
any  felony  shall  not,  in  any  case,  be  merged  in  such  felony, 
or  be  in  any  manner  affected  thereby,^ 

§  37.  With  respect  to  the  assignment  of  a  claim  for  a  tort, 
it  has  been  held,  in  New  York,  that  although  mere  personal 
actions  which  die  with  the  person  are  not  assignable ;  yet 
that  torts  for  taking  and  converting  personal  property,  or  for 
injury  to  personal  property,  and  it  seems,  generally,  all  such 
rights  of  action  for  a  tort  as  would  survive  to  the  personal 
representatives,  may  be  assigned  so  as  to  pass  an  interest  to 
an  assignee,  which  he  can  now  assert  under  the  Code  in  a 
civil  action  in  his  own  name,  as  he  might  formerly  at  com- 
mon law  assert  in  the  name  of  the  assignor.*  *  Substantially 
the  same  rule  has  been  adopted  in  Massachusetts.^  In  Pennsyl- 
vania, it  has  been  held  that  an  action  for  unliquidated  damages 
sounding  in  tort,  before  verdict,  is  not  capable  of  assignment 
so  far  as  respects  the  rights  of  third  persons ;  but  that,  as 
I)etween  attorney  and  client,  an  agreement  to  assign  the 
whole  or  part  of  a  future  verdict  is  binding,  and  when 
founded  on  sufficient  consideration,  will  be  enforced.®  In 
New  Hampshire,  in  an  action  of  trespass  for  taking  and 
carrying  away  two  lambs,  the  defendant  pleaded  an  accord 
and  satisfaction,  and  the  plaintiff  replied  an  assignment  of 
the  cause  to  his  attorney,  and  notice  of  the  same  to  the  de- 
fendant before  the  accord.  The  defendant  objected  to  the 
validity  of  the  assignment,  contending  that  it  was  against 


'  4  Blk.  Com.  by  Chitty,  p.  6,  note  8. 

M  N.  Y.  Rev.  Sts.  5th  ed.  p.  589. 

'  Koenig  v.  Nott,  2  Hilton,  323;  8  Abb.  384. 

*  Butler  V.  N.  Y.  &  Erie  R.  R.  Co.  22  Barb.  110;  Purple  v.  Hudson  River  R. 
R.  4  Duer,  74 ;  McKee  v.  Judd,  2  Kernan,  622 ;  Hall  v.  Robinson,  2  Comst.  293 ; 
overruling  Gardner  v.  Adams,  12  Wend.  297. 

'  Rice  V.  Stone,  1  Allen,  506. 

*  Patten  v.  Wilson,  34  Penn.  299. 

*  Whether  a  wife  can  assign  a  claim  for  damages  for  a  tort  without  her  bus- 
band,  quwre.  She  could  not  do  so  at  common  law  without  his  privity  and  con- 
currence ;  although  courts  of  equity  would  sustain  such  conveyances  when  her 
intention  so  to  do  was  made  apparent  (Sherman  v.  Elder,  1  Hilton,  178). 


38  TRESPASS   AS  A  REMEDY.  §  38^ 

public  policy,  cliampertous,  and  void.     The  assignment  was, 
liowever,  sustained.^  * 

2.  Action  for  wrong  committed  hy  married  woman. 

§  38.  At  common  law,  the  husband  is  liable  for  the  torts 
or  wrongful  acts  of  his  wife  during  coverture,  when  such 
wrongs  are  prejudicial  to  the  person  or  property  of  others. 
The  action  for  the  redress  of  such  wrongs  is  brought  against 
both  husband  and  wife.^  If  the  tort  be  done  by  the  wife  in  the 
company  of  her  husband,  the  law  presumes  coercion  on  his  part, 
or  his  direction  to  the  wife,  which  excuses  her  fi'om  responsi- 


'  Jordan  v.  Gillen,  44  N.  Hamp.  424. 

'  Head  v.  Briscoe,  5  C.  c&  P.  484 ;  Whitmore  v.  Delano,  6  N.  Hamp.  543 ; 
Mathews  v.  Fiestel,  2  E.  D.  Smith,  90  ;  Kowing  v.  Manly,  57  Barb.  479;  3  Abb. 
N.  S.  377 ;  Anderson  v.  Hill,  53  Barb.  238 :  Baker  v.  Young,  44  111.  42 ;  2^ost,  §  221. 

*  Maintenance,  which  includes  champerty,  is  defined  to  be  an  unlawful  taking 
in  hand  or  upholding  of  quarrels  and  sides,  to  the  disturbance  and  hindrance  of 
common  right ;  or  it  may  be  confined  to  cases  where  a  man  improperly  and  for 
the  purpose  of  stirring  up  litigation  and  strife,  encourages  others  to  bring 
actions  or  to  make  defenses  which  they  have  no  right  to  make  (3  Greenlf.  Ev.- 
§  180).  In  Fiudon  v.  Parker,  11  M.  &  W.  675,  Lord  Abinger,  in  order  to  show 
"what  would  not  constitute  maintenance,  says :  "  If  a  man  were  to  see  a  poor 
I^erson  in  the  street,  oppressed  and  abused,  and  without  the  means  of  obtaining 
redress,  and  furnished  him  with  money,  or  employed  an  attorney  to  obtain 
redress  for  his  wrongs,  it  Avould  require  a  very  strong  argument  to  convince  me 
that  that  man  could  be  said  to  be  stirring  up  strife  and  litigation,  and  to  be 
guilty  of  the  crime  of  maintenance.  I  am  not  prepared  to  say  that  in  modern 
times  courts  of  justice  ought  to  come  to  that  conclusion."'  The  defendant  may 
show  that  the  act  was  justifiable,  as  that  he  already  had  an  interest  in  tbe  suit 
in  which  he  advanced  his  money,  though  it  were  but  a  contingent  interest,  or 
tliat  he  assisted  the  party  because  he  was  a  poor  man  (3  Greenlf.  Ev.  §  182; 
Perine  v.  Dunn,  3  Johns.  Ch.  R.  508).  "  A  grant  of  a  part  of  a  thing  in  suit, 
made  in  considei'ation  of  a  precedent  debt,  is  not  within  the  meaning  of  the 
statute  against  champerty"  (1  Bac.  Ab.  575;  Arden  v.  Patterson,  5  Johns.  Ch. 
R.  44).  Judge  Story,  while  admitting  the  law  against  acts  of  champerty  and 
maintenance  to  be  in  force  in  the  United  States  to  a  limited  extent,  says  that  a 
party  may  purchase  by  assignment  the  whole  interest  of  another  in  a  contract 
or  security  or  other  property  which  is  in  litigation,  provided  there  be  nothing  in 
the  contract  which  savors  of  maintenance ;  that  is,  provided  he  does  not  under- 
take to  pay  any  costs  or  make  any  advances  beyond  the  mere  support  of  the  ex- 
clusive interest  which  he  has  so  acquired  (2  Story's  Eq.  §  1050).  In  Shapleigh 
V.  Bellows,  4  N.  Hamp.  355,  Richardson.  J.,  said:  "There  is  a  general  under- 
standing between  attorneys  and  their  clients  that  the  former  shall  retain  their 
fees  and  disbursements  out  of  the  sum  that  may  be  recovered  of  the  opposite 
party ;  and  it  is  not  uncommon  that  attorneys  commence  for  poor  people  actions, 
and  make  advances  of  money  necessary  to  the  prosecution  of  the  suit  upon  the 
credit  of  the  cause.  Thus,  a  person  in  indigent  circumstances  is  enabled  to 
obtain  justice  in  cases  where,  without  such  aid,  he  would  be  unable  to  enforce 
a  just  claim.''  The  same  thing  was  said  by  Bell,  C.  J.,  in  Christie  v.  Sawyer, 
44  N.  H.  298;  and  the  general  doctrine  was  recognized  in  Jordan  v.  Gillen,  44 
ZST.  Hamp.  424. 


§  39.  ACTION   FOR  WRONG   BY  MARRIED  WOMAN.  39 

bility ;  but  sucli  presumption  is  not  conclusive,  and  tlie  con- 
trary may  be  established  by  proof.  To  exempt  her  from 
liability,  both  of  these  concurrent  circumstances  must  exist, 
to  wit :  the  presence  and  command  of  her  husband.  An 
offense  by  his  direction,  but  not  in  his  presence,  does  not 
exempt  her  from  liability  ;  neither  does  his  presence,  if  un- 
accompanied by  his  direction.^  "* 

§  89.  The  liability  of  the  husband  for  the  WTongful  acts 
of  his  wife  lasts  during  the  existence  of  the  marital  relation, 
though  they  be  living  apart,  unless  they  are  separated  by  a 
judicial  decree.'-     After  the  death  of  the  husband,  the  mfe 

•  Bacon's  Abr.  Tit.  Baron  &  Feme ;  Keyu-orth  v.  Hill,  3  B.  &  Aid.  685 ; 
M'Keown  v.  Johnson,  1  M'Corcl,  578;  Hawk  v.  Haman,  5  Bin.  43;  Wagener  v. 
Bill,  19  Barb.  321 ;  Flanagan  v.  Tinen,  53  lb.  587  ;  37  How.  130 ;  Peak  v.  Lemon, 
1  Lans.  295;  Cassin  v.  Delany,  38  N.  Y.  178;  Marshall  v.  Cakes,  51  Maine,  308. 

'  Head  v.  Briscoe,  supra. 

*  The  wife,  during  the  existence  of  coverture,  cannot  be  arrested  under 
mesne  process.  To  use  the  language  of  Blackstone,  by  marriage  the  husband 
and  wife  become  one  person  in  law;  that  is,  the  very  being  or  legal  existence  of 
the  woman  is  suspended  during  the  marriage,  incorporated  or  consolidated  into 
that  of  the  husband  (1  Blk.  Com.  442).  Such  being  the  legal  effect  of  the  rela- 
tion, the  liability  of  the  husband  for  the  wife's  tort,  or  quasi  delict,  stands  upon 
a  principle  of  necessity  as  well  as  justice.  For  the  wife  alone  cannot  be  sued 
in  such  a  case,  and  if  the  husband  were  also  protected  from  responsibility,  the 
injured  party  would  be  entirely  without  redress  (Macqueen  on  Husband  and 
Wife,  pt.  1,  p.  127.  As  the  law  stood  in  New  York  prior  to  the  Code,  a  hus- 
band might  be  arrested  for  a  tort  committed  by  his  wife,  and  was  bound  to  put 
in  bail  for  both.  After  judgment,  she  might  be  charged  in  execution  with  her 
husband;  but  if  arrested  before  judgment,  she  would  be  discharged  upon  proof 
of  her  coverture,  and  on  filing  conimon  bail  (Solomon  v.  Waas,  2  Hilton,  179, 
per  Daly,  J.,  citing  Cornish  v.  Marks,  6  Mod.  17;  1  lb.  8;  Ventris,  49;  Crookes 
V.  Fry,  1  Bar.  &  Aid.  165 ;  Taylor  v.  Whitaker,  2  Dow  &  Ry.  225 ;  Clark  v. 
Norris,  1  H.  Bl.  235;  Russell  v."  Buchanan,  6  Price,  139;  LangstafE  v.  Rain,  1 
Wils.  149;  Pitts  V.  Meller,  Strg.  1167;  Finch  v.  Duddin,  lb.  1237;  Berriman  v. 
Gilbert,  Barnes,  203). 

In  New  York,  for  the  tort  of  the  wife,  the  husband  can  still  be  sued. 
He  is  a  necessary  party,  for  she  cannot  be  sued  alone.  Both  are  chargeable 
for  a  wrong  done  by  the  wife,  and  both  must  be  joined  as  defendants. 
Nor  can  they  even  plead  separately,  but  must  join  in  the  plea.  He  is, 
therefore,  a  necessary  defendant  in  the  action,  and  as  the  wife  never  could  be 
arrested,  the  179th  section  of  the  Code,  which  declares  that  the  defendant  may 
be  arrested  where  the  action  is  for  injuring,  or  for  wrongfully  taking,  detaining, 
or  converting  property,  must  be  applicable  to  him.  The  only  provision  that  has 
any  bearing  upon  the  subject  is  that  part  of  section  179,  which  declares  that  no 
female  shall  be  arrested  in  any  action,  except  for  a  wilful  injury  to  person,  char- 
acter, or  property,  which  did  not  materially  change  the  law,  the  N.  Y.  Rev. 
Sts.  of  1829  having  provided  tiiat  no  female  should  be  imprisoned  in  any  civil 
action  founded  upon  contract  (2  Rev.  Sts.  428) ;  and  the  provision  of  section 
114  of  the  Code,  that  when  a  married  woman  is  a  party,  her  husband  must  be 
joined  with  her,  so  far  as  it  affects  tliis  question,  was  merely  alErmatory  of  the 
existing  law  (Solomon  v.  Waas,  2  Hilton,  179,  per  Daly,  J.) 


40  TRESPASS    AS   A   REMEDY.  §  39. 

may  be  sued  alone  for  all  tortious  acts  in  whicli  sLe  has 
participated,  whether  she  was  a  sole  actor  in  them,  or 
whether  they  were  committed  at  the  instigation  of  her 
husband ;  ^  and  it  is  the  same  where  the  husband  is  civilly 
dead.^  * 


'  Vine  V.  Saunders,  4  B.  N.  C.  102.  '  Bacon's  Abr.  Tit.  Baron  &  Feme. 

*  The  recent  statutes  of  New  York  leave  unaffected  the  liability  of  the  hus- 
band for  the  strictly  personal  torts  of  the  wife.  The  theory  upon  which  the 
husband's  liability  proceeds  is,  that  the  marriage  subjects  the  person  of  the  wife 
to  the  dominion  and  control  of  her  husband,  so  that  the  commission  of  a  tort 
by  her  is,  in  a  degree  at  least,  the  result  of  his  fault  or  omission.  But  in  New 
York,  in  those  transactions  wherein  the  wife  is  now  empowered  to  act  for  her- 
self, as  an  unmarried  woman  free  from  the  control  of  her  husband,  she  is  liable 
to  the  same  extent  as  any  otiier  person  would  be  under  the  same  circumstances  ; 
and  although  her  husband  may  Ije  present  with  her,  she  is  presumed  by  the  law  to 
act  without  his  coercion  or  command.  So,  on  the  other  hand,  the  husband  is  free 
from  all  liability  for  her  acts  in  such  cases,  to  the  same  extent  that  another  per- 
son, not  her  husband,  would  be  in  her  presence.  The  husband  being  by  the 
law  deprived  of  the  control  of  his  wife's  actions,  he  is  by  the  same  law  relieved 
from  liability  for  her  .acts.  Accordingly,  where  the  cattle  of  a  married  woman 
trespass  on  land,  the  husband  need  not  be  made  a  party  defendant  in  an  action 
therefor  (Rowe  agst.  Smith,  38  How.  Pr.  R.  37;  s.  c.'SS  Barb.  417;  aff'd,  45 
N.  Y.  230).  And  where  a  person  demanded  from  a  married  woman  his  property 
in  her  house,  which  she  refused  to  surrender,  claiming  to  hold  it  on  account  of 
the  debt  he  owed  her,  it  was  held  that  in  thus  asserting  her  own  right  or  claim, 
she  acted  at  her  peril,  like  any  one  else  under  the  same  circumstances,  and  that 
her  husband  was  not  liable  at  all  as  husband,  and  could  only  be  charged  to  the 
extent  that  he  might  have  interfered  (Peak  v.  Lemon,  1  Lansing,  295).  In  the 
latter  case,  the  court  commented  upon  the  changed  relations  of  married  women 
effected  by  recent  legislation  in  the  State  of  New  York,  as  follows:  "The  wife 
can  now  own  and  have  the  present  use  and  enjoyment  of  property,  both  real  and 
personal,  and  its  rents,  issues,  and  profits.  She  may  carry  on  any  trade  or  busi- 
ness, and  perform  any  labor  or  services  on  her  sole  and  separate  account ;  and 
her  earnings  from  her  trade,  business,  labor,  or  services  are  her  sole  and  separate 
property,  and  may  be  u.sed  and  invested  by  her  in  her  own  name  (Laws  of  N.  Y. 
of  1860,  ch.  90,  §  2).  By  statute,  she  may  also  sue  and  be  sued  in  all  matters 
having  relation  to  her  sole  and  separate  property,  in  the  same  manner  as  if  she 
were  sole.  The  husband  is  not  liable  for  any  of  her  contracts  relating  to  her 
property,  trade,  or  business,  and  is  exempted  from  costs  in  an  action  brought  or 
defended  by  any  married  woman  in  her  name  (Laws  of  N.  Y.  of  1862,  ch.  172, 
§  5).  In  regard  to  her  separate  property,  she  is  made  by  our  law  as  independent 
as  her  husband  ever  was  in  the  ownership  and  enjoyment  of  his  property.  The 
earnings  from  her  labor  are  her  separate  property.  The  law  gives  her  the  sole 
management  and  control  of  these  matters,  and  deems  her  competent  to  act  for 
herself,  independently  of  her  husband.  Where  her  property,  her  dues,  and  her 
litigation  are  concerned,  the  law  now  presumes  her  independence  and  personal 
capacity ;  and  in  relation  to  the  management  of  her  estate  and  the  collection 
of  her  debts,  she  is  no  longer  presumed  to  be  under  the  control  or  coercion  of 
any  one.  In  respect  to  her  new  rights  and  interests,  the  disabilities  of  coverture, 
as  such  disabilities  existed  at  common  law,  are  removed.  The  recent  laws  have 
surrounded  her  with  new  relations,  declared  her  independent  in  certain  partic- 
ulars, and  granted  her  new  rights,  out  of  which  also  arise  new  duties  and  ob- 
ligations." In  Cassin  v.  Delany.  38  N.  Y.  R.  178,  the  questions  decided  arose 
in  1855,  before  the  statutes  of  1860  and  1862  had  conferred  upon  the  wife  this 
new  capacity  for  trade  and  business  on  her  own  account. 


§  40.      REDRESS   FOR  THE  WRONGFUL  ACTS  OF  MINORS.  41 

3.  Hedress  for  the  wrongful  acts  of  minors. 

§  40.  A  father  is  not  liable  for  the  wilful  act  of  his 
minor  child,  done  in  his  absence  and  without  liis  authority 
or  approval ;  ^  the  child  being  answerable  for  its  own  act, 
whether  founded  on  positive  wrong  or  a  constructive  tort  or 
fraud.^  *  But  it  has  been  held  that  money  intrusted  by  a 
father  to  his  infant  son  for  a  special  purpose,  paid  by  the  son 
solely  as  civil  damages  in  settlement  of  a  trespass,  cannot  be 
recovered  back  by  the  father,  although  the  money  was  paid 
without  his  knowledc^e  or  consent.^     And  if  the  father  be 


'  Tift  V.  Tift,  4  Denio,  175. 

"  Ibid. ;  Milton  v.  Bragdon,  3  Fost.  507;  Bullock  v.  Babcock,  3  Wend.  391 ; 
Hanks  v.  Deal,  3  M'Cord,  257 ;  Fitts  v.  Hall,  9  N.  Hamp.  441 ;  Lewis  v.  Little- 
field,  3  Shepl.  233;  Badger  v.  Phinney,  15  Mass.  359;  Humphrey  v.  Douglass, 
10  Vt.  Ill-; post,  §  371. 

'  Burnham  v.  Holt,  14  H.  Hamp.  367. 

*  In  an  action  of  trespass  against  minors  of  the  ages  of  twelve  and  fourteen 
years,  for  breaking  and  entering  the  plaintiff's  close  and  disturbing  their  school, 
it  was  held  that  as  the  defendants  had  no  right  to  attend  the  school,  they  were 
trespassers  in  entering  the  school  house  after  being  notified  by  the  prudential 
committee  not  to  do  so  (School  Dist.  No.  1,  in  Milton  v.  Bragdon  et  al.  3  Fost.  507). 

It  has  been  held  that  an  action  of  trespass  may  be  maintained  against  an  in- 
fant, although  in  committing  the  offense  he  acted  by  the  command  of  his  father. 
Scott  V.  Watson,  46  Maine,  362,  was  an  action  for  breaking  and  entering  the 
plaintifi^s  close  and  carrying  away  hay,  to  which  the  only  defense  made  was, 
that  the  defendant  was  a  minor  acting  under  the  authority  and  by  the  direction 
of  his  father.  May,  J.,  dissenting,  said  :  "It  is  true,  as  a  general  rule,  that  in- 
fants who  have  arrived  at  the  age  of  discretion,  are  liable  for  their  tortious  acts. 
But  for  the  protection  of  infants,  ought  not  the  rule  to  be  limited  to  cases  where 
the  infant  acts  under  such  circumstances  that  he  must  know,  or  be  presumed  to 
know,  that  the  acts  which  he  commits  are  unauthorized  and  wrong,  when  it 
appears  that  in  the  commission  of  the  acts  he  was  under  the  control  and  direc- 
tion of  his  father  ?  Will  not  an  opposite  doctrine  tend  to  encourage  disobedience 
in  the  child,  and  thus  be  subversive  of  the  best  interests  of  the  community  ? 
Will  it  not  also  tend  to  subject  him  to  embarrassment  and  insolvency  when  he 
shall  arrive  at  full  age  ?  If  all  the  members  of  a  family  under  age  are  to  be  held 
liable  in  trespass  or  trover  for  the  food  which  they  eat,  when  that  food  is  in  fact 
the  property  of  another,  but  being  set  before  them,  they  partake  of  it,  in  igno- 
rance of  such  fact,  by  the  command  or  direction  of  the  parent,  and  under  the 
belief  that  it  is  his,  will  not  such  a  doctrine  be  in  conflict  with  the  principle 
that  the  common  law  is  intended  as  a  shield  and  protection  against  the  improvi- 
dence of  infancy  ?  While  the  decided  cases  upon  this  subject  seem  to  be  limited 
to  cases  of  contract,  is  there  not  the  same  reason  for  extending  it  and  applying 
it  to  cases  like  the  one  before  us  ?  In  all  cases  which  I  have  examined  in  which 
infants  have  been  held  liable,  the  proof  shows  acts  of  positive  wrong,  committed 
under  circumstances  where  the  infant  must  have  known  the  nature  and  character 
of  his  acts.  If  the  doctrines  of  the  opinion  are  to  prevail  in  a  case  like  this, 
then  the  common  law  is  but  the  revival  of  the  old  doctrine  that  the  parents,  by 
eating  sour  grajjcs,  have  set  the  children's  teeth  on  edge.  The  rule  that  a  servant 
who  acts  in  ignorance  of  the  rights  of  his  principal  is  to  be  held  liable  for  his 
acts,  does  not  fall  within  the  principles  for  which  I  contend." 


42  TRESPASS   AS  A  REMEDY.  §§  41,  42. 

present  at  the  commission  of  the  wrong,  and  do  nothing  to 
restrain  his  child,  he  will  be  responsible.^ 

§  41.  Minors  are  presumed  wanting  in  discretion  to 
manage  their  own  causes,  or  to  appoint  and  instruct  attor- 
neys. Guardians  are  therefore  to  be  assigned  them,  who 
shall  protect  their  rights  and  be  accountable.  Where  after 
judgment  by  default  in  an  action  of  trespass  against  minors, 
it  appeared  that  no  guardian  ad  litem  had  been  appointed 
for  them,  the  judgment  was  reversed  as  to  the  minors,  and 
allowed  to  stand  as  to  the  other  defendants.^  * 

4.   Liahility  of  master  for  wrongful  acts  of  servant. 

§  42.  As  the  subject  of  this  subdivision  will  hereafter 
again  be  discussed  with  reference  to  special  cases,^  we 
must  in  this  place  be  brief  It  may  be  stated  generally, 
that  the  liability  of  the  master  for  the  acts  of  his  servant, 
depends  upon  whether  the  servant  at  the  time,  and  in  the 
particular  in  question,  was  acting  under  and  in  execution 
of  authority  from  the  master ;  in  which  case  the  master  is 
responsible.^  Where  an  intoxicated  person  in  an  omnibus 
refused  to  get  out  and  to  pay  his  fare  when  the  omnibus 
reached  its  terminus,  and  the  conductor  dragged  him  out 
violently  and  recklessly,  and  caused  him  to  fall  under  the 
wheel  of  a  passing  cab,  it  was  held  that  there  was  evi- 
dence for  the  jury  of  the  wrongful  act  hav-ing  been  done 
by  the  servant  in  the  course  of  his  employment  about  the 
master's  business,  ^nd  that  the  proprietor  of  the  omnibus 
was  liable  for  the  injury.^  f     In  Weed  v.  The  Panama  R.  R. 

'  Strohl  V.  Levan,  39  Penri.  St.  R.  177;  post,  §  208,  7iote. 

»  Wilford  V.  Grant,  Kirby  R.  114;  but  see  Cruikshank  v.  Gardner,  2  Hill,  333. 

'  Post,  §§  180,  et  seq. 

*  Greer  V.  Emerson,  1  Overt.  13;  Elder  v.  Bemis,  2  Mete.  599;  Hawks  v. 
Charlemont,  107  Mass.  414;  Howe  v.  Newmarch,  12  Allen,  49;  Goddard  v. 
Grand  Trunk  R.  R.  57  Maine,  2a3. 

*  Seymour  v.  Greenwood,  6  H.  &  N.  359;  SO  L.  .7.  Excli.  189,  qualifying 
M'Manus  v.  Cricket,  1  East,  105. 

*  In  Wilford  v.  Grant,  sitjtra,  the  right  of  action  was  personal  aud  the  original 
plaintiff  dead ;  so  that  the  action  could  not  have  been  brought  de  novo. 

t  The  principle  that  subjects  the  master  for  the  tortious  act  of  his  servant, 


§  42.         LIABILITY   OF   MASTER  FOR  ACTS   OF    SERVANT.  43 

Co.^  the  question  was  wlietlier  the  defendants  were  liable  for 
the  detention  of  the  train  producing  damages  to  the  wife  of 
the  plaintiff,  although  the  detention  was  the  wilful  act  of  the 
conductor,  neither  authorized  nor  approved  by  the  defend- 
ants. It  was  held  that  if  his  act  was  w^ithin  the  scope  of  his 
employment,  the  defendants  were  equally  liable  whether  the 
act  was  wilful  or  negligent.* 

done  in  the  performance  of  his  master's  business  and  within  the  scope  of  the 
general  authority  conferred,  is  the  same  as  that  which  subjects  him  for  the  act 
of  his  servant  done  by  his  express  direction  given  at  the  time.  In  both  cases, 
the  maxim  applies,  qiii  facit  per  alium  facit  per  se  ;  and  the  master  shall  be  re- 
sponsible for  the  acts  of  his  agent  to  the  same  extent  that  he  would  be  if  he 
personally  committed  the  Avrong.  But  the  remedies  applicable  to  these  several 
injuries  are  different.  In  the  former  case,  he  is  liable  only  in  an  action  upon  the 
case  founded  upon  the  negligence  of  the  servant  in  the  performance  of  the 
master's  lawful  business.  Whereas,  in  the  latter  case,  he  is  liable  in  an  action 
of  trespass,  caused  by  the  act  of  the  servant.  But  his  liability  to  be  sued  in 
trespass  does  not  rest  at  all  upon  the  relationship  of  master  and  servant,  but 
upon  the  fact  that  the  act  complained  of  was  done  by  his  express  direction  and 
command ;  and  so  in  reality,  as  well  as  in  law,  is  his  own  act,  though  done 
through  the  instrumentality  of  another.  A  man  shall  not  be  made  a  trespasser 
against  his  will,  though  he  may  be  made  liable  in  an  action  on  the  case  for  the 
negligence  of  the  servant  while  engaged  in  the  business  of  the  master,  however 
contrary  to  the  master's  wishes  such  negligence  may  be.  Because,  he  who  is 
damaged  ought  to  be  recompensed,  and  a  man  must  so  use  his  own  as  to  do  no 
injury  to  another;  and  where  one  of  two  innocent  persons  must  suffer  it  is  more 
reasonable  that  he  should  suffer  whose  act  of  employing  an  unskilful  or  negli- 
gent servant  was  the  cause  of  the  injury,  than  that  the  other,  who  has  been 
wholly  in  the  right,  should  be  compelled  to  bear  a  loss  brought  upon  him 
through  another's  want  of  care  in  not  attending  to  his  own  business,  and  in  en- 
trusting it  to  the  carelessness  of  his  servant  (The  Thames  Steamboat  Co.  v.  Hou- 
satonic  R.  R.  Co.  24  Conn.  40). 

The  distinction  between  the  trespass  of  the  servant  and  the  liability  of  the 
master  for  negligence  arising  from  an  act  which  might  amount  to  a  trespass  in 
the  servant  is  well  illustrated  in  Croft  v.  Alison,  6  Eng.  C.  L.  614,  which  was  an 
action  on  the  case  against  a  master  for  the  negligence  of  his  servant  in  striking 
the  plaintiff's  horses.  When  the  horses  were  struck,  the  carriage  of  the  plaintiff* 
became  entangled  with  the  carriage  of  the  defendant.  The  judge  told  the  jury 
to  find  for  the  defendant  if  the  entangling  was  the  result  of  the  moving  of  the 
plaintiff's  horses  which  were  left  without  a  driver,  and  the  whipping  was  for  the 
purpose  of  extricating  himself  from  that  situation ;  but  to  find  for  the  plaintiff  in 
case  the  entangling  arose  from  the  fault  of  the  defendant's  coachman.  The  court, 
in  sustaining  this  charge,  say,  if  a  servant  driving  a  carriage,  in  order  to  effect 
some  purpose  of  his  own,  wantonly  strike  the  horse  of  another  person,  and  pro- 
duce the  accident,  the  master  will  not  be  liable.  But  if,  in  order  to  perform 
his  master's  orders,  he  strikes,  but  injudiciously,  that  will  be  negligent  and  care- 
less conduct,  for  which  the  master  will  be  liable,  being  an  act  done  in  pursuance 
of  the  servant's  employment. 

'  17  N.  Y.  3G2. 

*  A  railroad  company  is  liable  for  damages  caused  by  the  detention  of  freight 
in  consequence  of  a  lar^e  number  of  the  engineers  in  the  employ  of  the  com- 
pany suddenly  and  wilfully  refusing  to  do  duty.  In  Blackstock  v.  The  N.  Y. 
&  Erie  R.  R.  Co.  20  N.  Y.  48,  the  court  said:  "  In  the  present  case,  the  excuse 
arises  wholly  out  of  the  misconduct  of  the  defendant's  servants,  who  wrongfully 


44  TEESPASS   AS  A  REMEDY.  §  43. 

S  43.    ^^^lere  the  servant  at  the  time  he  commits  the 

o 

"wrong  is  not  acting  in  the  master's  business,  and  within  the 
scope  of  his  employment  as  his  servant,  but  for  some  exclu- 
sive object  of  his  own,  the  master  will  not  be  liable.^*  It 
was  accordingly  held  that  the  owuer  of  a  steamboat  was  not 
liable  for  the  wilful  misconduct  of  the  master  in  iTinning  her 
against  and  injuring  another  steamboat.^  f  So,  where  the 
general  superintendent  of  the  defendant's  mercantile  business, 

refused  to  perfonn  their  duty,  and  thus  deprived  the  defendants  for  the  time  of 
the  ability  to  send  forward  the  property;  and  the  question  is,  whether  the  de- 
fendant's case  can  be  separated  from  that  of  the  engineers,  so  that  it  can  be  held 
that  though  the  latter  were  culpable,  their  employers,  the  defendants,  were  with- 
out fault,  and  consequently  not  responsible  to  the  plaintiff.  This  involves  a 
consideration  of  the  legal  effect  of  the  relations  which  exist  between  these 
several  parties.  In  the  first  place,  there  was  no  privity  between  the  plaintiff  and 
the  engineers.  The  latter  owed  no  duty  to  the  former,  which  the  law  can  recog- 
nize. If  they  had  committed  a  positive  tort  or  trespass  upon  the  property,  the 
owner  might  pass  by  the  employers  and  hold  them  responsible;  but  for  a  non- 
feasance, or  simple  neglect  of  duty,  they  were  only  answerable  to  their  em- 
ployees. The  maxim  in  such  cases  is,  respondeat  superior.  Although  the  nature 
of  the  contract  between  the  railroad  company  and  the  engineers  is  not  disclosed 
in  the  finding,  it  is  quite  improbable  that  it  was  such  that  the  latter  might  throw 
up  their  employment  upon  two  days'  notice  without  any  legal  cause.  If  it  were 
of  that  character,  the  liability,  moral  as  well  as  legal,  would  rest  upon  the  de- 
fendants ;  for,  in  that  case,  they  would  have  neglected  a  most  ordinary  precau- 
tion for  securing  the  continuous  running  of  their  trains.  Assuming,  then,  that 
abandoning  their  work  was  a  breach  of  contract  on  the  part  of  the  engineers, 
they  by  that  act  became  responsible  to  the  defendants  for  all  its  direct  conse- 
quences. The  case,  therefore,  is  one  in  which  the  actual  delinquents,  through 
whose  fault  the  injury  was  sustained,  were  responsible  to  the  defendants,  but 
were  not  responsible  to  the  plaintiff.  This  shows  the  equity  of  the  rule  which 
holds  the  master  or  employer  answerable  in  such  cases.  Its  policy  is  not  less 
apparent. 

'  Huzzey  v.  Field,  2  Cr.  M.  &  R.  433,  440 ;  Caldwell  v.  Sacra,  6  Litt.  118. 

'  Vanderbilt  v.  Richmond  Turnpike  Co.  2  Comst.  479 ;  1  Hill,  480. 

*  It  has  been  said  that  the  implied  authority  of  the  servant  is  limited  to  those 
acts  which  the  master  could  himself  do  if  personally  present,  and  that  if  in  the 
performance  of  such  acts  the  servant  misconducts  himself,  the  master  will  be 
liable  (Isaacs  v.  Third  Av.  R.  R.  Co.  47  K  Y.  122;  Poulton  v.  L.  &  S.  W.  R.  R. 
Co.  2  L.  R.  Q.  B.  534). 

t  In  Vanderbilt  v.  Richmond  Turnpike  Co.  supra,  the  judge,  in  the  court 
below,  refused  to  charge  the  jury  that  if  the  servant  of  the  defendants  wilfully 
produced  the  collision  the  defendants  were  not  lial)le.  The  plaintiff  recovered, 
and  the  judgment  was  reversed  by  the  Supreme  Court,  which  held  that  if  the 
collision  was  wilful  on  the  part  of  the  defendant's  servant,  the  defendant  was 
not  liable,  referring  to  Wright  v.  Wilcox,  19  Wend.  343.  After  another  trial, 
the  case  went  to  the  New  York  Court  of  Appeals  (2  Comst.  479),  where  the  doc- 
trine applied  in  the  Supreme  Court  was  sanctioned ;  and  it  was  further  held,  that 
the  corporation  was  not  liable,  although  the  wilful  act  producing  the  injury  was 
authorized  and  sanctioned  by  the  president  and  general  agent  thereof.  The 
reason  of  the  decision,  stated  in  the  opinion  delivered  by  Cady,  J.,  is  in  sub- 
stance that  a  general  or  special  agent  in  committing  or  ordering  a  wilful  trespass 
to  be  committed  acts  without  the  scope  of  his  authority. 


§  45.         LIABILITY  OF   MASTER  FOR  ACTS   OF   SERVANT.  45 

suspecting  that  the  plaintiff  had  stolen  the  goods  of  his  em- 
ployer, caused  her  to  be  arrested  and  searched,  it  was  held 
that  as  authority  for  the  arrest  could  not  be  implied  from  the 
general  employment  of  the  superintendent  of  the  store,  his 
employer  was  not  liable.^ 

§  44.  The  law  does  not  impute  malice  or  a  wanton  and 
wilful  trespass  to  the  transaction  of  any  lawful  business,  con- 
trary to  the  wishes  of  the  party,  any  more  than  it  will  im- 
pute crime.  These  acts  maybe  done  through  the  instrumen- 
tality of  agents.  But  it  must  be  shown  as  a  fact  that  they 
were  ordered  or  authorized  to  be  done.  If  I  command  my 
servant  to  distrain,  and  he  ride  on  the  distress,  he  shall  be 
punished,  and  not  1}  So,  if  my  servant,  contrary  to  my  will, 
chase  my  beast  into  the  soil  of  another,  I  shall  not  be  pun- 
ished.^ And  if  my  servant  without  my  knowledge  put  my 
beasts  into  another's  field,  my  servant  is  the  trespasser,  and 
not  I ;  because,  by  the  voluntary  putting  of  the  beasts  there 
without  my  assent,  he  gains  a  special  property  for  the  time, 
and  so,  to  this  purpose,  they  are  his  beasts.^  If  a  servant 
employed  to  drive  his  master's  carriage  were  to  leave  the 
carriage,  and  seize  the  horse  of  another  whose  carriage  ob- 
structed his  passage  along  the  highway,  and  thereby  occasion 
an  injury,  his  master  would  not  be  liable  ;  because,  in  that 
matter  he  was  not  acting  in  the  employment  of  his  master.^ 
So,  too,  if  a  man  send  his  horse  to  the  shop  of  a  blacksmith 
to  be  shod,  and  while  the  horse  is  standing  at  the  door,  the 
servant  of  the  blacksmith,  without  the  knowledge  of  his 
master,  beat  the  horse,  and  thereby  injure  him,  the  servant 
alone  will  be  responsible.^  * 

§  45.  We  are  not  merely  to  inquire  who  is  the  general 


'  Mali  V.  Lord,  39  N.  Y.  381.  =  Noy's  Maxims,  ch.  44. 

'  Bro.  Abr.  Trespass  PI.  43^j.  "  2  Roll,  Abr.  553. 

"  Cbuvch  V.  Mansfield,  20  Conn.  284. 

'  Ibid. ;  and  see  Lamb  v.  Palk,  9  C.  &  P.  629. 

*  This  doctrine  does  not  militate  against  the  cases  in  which  a  master  has  been 
holden  for  the  mischief  arising  from  the  negligence  or  unskilfuluess  of  the  serv- 
ant who  had  no  purpose  but  the  execution  of  his  master's  orders. 


46  TRESPASS    AS   A  REMEDY.  §  46. 

owner  of  real  estate  iu  ascertainiug  who  is  responsible  for 
acts  done  upon  it  injurious  to  another,  but  who  has  the 
efficient  control ;  for  whose  account,  at  whose  expense,  under 
whose  orders,  is  tlie  business  can-ied  on,  the  conduct  of  which 
has  occasioned  the  injury.^  Where  in  an  action  for  trespass 
to  land  it  appears  that  the  defendant  himself  did  not  tres- 
pass thereon,  it  must  be  j)roved  that  the  relation  of  master 
and  servant  subsisted  between  the  defendant  and  him  w^bo 
committed  the  acts.^  And  it  may  be  observed  that  one  who 
is  employed  to  oversee  and  take  tlie  entii'e  charge  of  work 
requiring  j)eculiar  skill,  is  so  far  a  servant  tliat  his  employer 
is  liable  for  his  misfeasance.^  But  if  it  appear  that  the  acts 
were  not  done  by  the  defendant,  or  by  his  order  and  direc- 
tion, or  at  his  expense,  or  for  his  benefit,  and  though  done 
on  land  of  which,  he  was  the  general  owner,  that  it  was  not 
land  of  whicli  he  at  the  time  had  the  possession  or  control, 
lie  will  not  be  liable.  Earle  v.  Hall  ^  was  an  action  of  tres- 
l^assfor  entering  the  plaintiff's  close  and  undermining  a  divis- 
ion wall  between  the  houses  of  tlie  plaintiff  and  defendant. 
It  was  proved  that  the  defendant  entered  into  a  contract 
under  seal  witb  one  Gilbert  to  convey  land  to  Gilbert,  that 
Gilbert  covenanted  to  build  a  brick  house  upon  the  land,  and 
to  pay  for  the  land  by  the  first  of  October  following,  and  that 
W'hile  the  agreement  was  in  force  the  worknien  of  Gilbert,  in 
preparing  to  build  the  house,  undermined  the  wall  of  the  ad- 
joining house  belonging  to  the  plaintiff,  which  was  tlie  tres- 
pass charged.    It  was  held  that  the  plaintiff  could  not  recover. 

§  46.  The  general  principle  to  be  extracted  from  the 
cases  in  regard  to  the  use  of  real  property  is,  that  tlie  owner 
of  real  estate,  either  absolutely  or  for  the  time  being — he 
"who  has  tke  management  and  control,  and  takes  the  benefit 
and  profit  of  the  estate ;  he  at  whose  expense,  and  on  whose 
account  the  business  is  conducted — shall  be  responsible  to 
third  persons  for  injury  caused  by  those  who  are  carrying  on 


■  Earle  v.  Hall,  2  Mete.  353.  -         -  McGuire  v.  Grant,  1  Dutcher,  356. 

'  Morgan  v.  Bowman,  22  Mo.  538.  *  Supra. 


§  47.         LIABILITY   OF   MASTER   FOR  ACTS   OF   SERVANT.  47 

the  business  by  which  they  are  damnified ;  and  this,  whether 
the  persons  thus  employed  and  engaged  are  working  on 
wages  or  by  contract,  and  whether  they  are  employed 
directly  by  the  principal  or  by  a  steward,  agent,  or  manager 
having  the  superintendence  of  his  estate.  Several  princi- 
j)les  of  law  seem  to  be  referred  to  as  the  source  of  this 
responsibility.  One  is,  that  he  who  does  an  act  by  another 
does  it  himself  Though  not  the  work  of  his  hands,  it  is  the 
result  of  his  will.  His  mind,  his  intent,  and  his  purposes  are 
the  efficient  cause  of  the  operations  conducted  by  others.  It 
is  therefore  he,  who,  in  the  conduct  of  his  own  business, 
causes  the  damage  complained  of,  and  it  is  of  him  that  re- 
dress shall  be  obtained. 

§  47.  Another  principle  is,  that  every  one  shall  so  use 
his  own  property  as  not,  in  the  management  of  it,  to  hurt 
that  of  another.  Having  the  power  to  determine  what 
agents  shall  be  employed,  what  business  shall  be  carried 
on,  upon  the  estate  of  which  he  has  either  the  ownership 
or  the  enjoyment  and  possession,  it  is  alike  the  dictate  of 
justice  and  public  policy  that  he  shall  be  responsible  for 
the  conduct  of  those  whom  he  may  employ  or  dismiss, 
and  whose  movements  he  has  the  power  to  direct.  Ac- 
cordingly, if  an  employee,  while  cutting  down  trees  by  his 
employer's  orders,  and  in  the  scope  of  his  employment, 
trespass  upon  another's  land,  the  employer  is  liable  there- 
for.^ Where  A.  voluntarily  undertook  to  help  B.  make  a 
brush  fence,  and  was  suffered  by  B.  to  proceed  in  his  serv- 
ice without  objection  or  any  other  restriction,  except  to  be 
careful  not  to  cut  trees  standing  on  the  plaintiff's  land,  which, 
however,  he  did  for  want  of  proper  information,  the  act  being 
done  in  the  j^resence  of  B.  and  for  his  benefit ;  it  was  held 
that  B.  was  liable  in  trespass  for  the  acts  of  A.^  The  re- 
sponsibility of  the  employer  has  been  extended  to  the  acts  of 
subagents.     In  Bush  v.  Steinman,^  the  defendant  had  pur- 


'  Luttrell  V.  Hazen,  3  Sneed,  20.  =  Hill  v.  Morey,  3C  Vt.  178. 

'  1  Bos.  &  Pul.  404. 


48  TRESPASS    AS  A  REMEDY.  §  48. 

chased  a  house  near  a  road  and  contracted  with  a  surveyor 
to  repair  it  for  a  stipulated  sum.     He  employed  a  carpenter, 
*the  carpenter  a  bricklayer,  and  the  latter  a  lime  burner ;  and 
the  act  which  caused  the  injury  to  the  plaintiff  was  done  by 
the  lime  burner's  servant  in  laying  a  heap  of  lime  in  the 
road.     At  the  trial,  Eyre,  C.  J.,  thought  the  relation  was  too 
remote,  and  that  the  action  would  not  lie.     But  after  argu- 
ment, he  concurred  with  the  other  judges  in  the  contrary 
opinion.     The  ground  he  put  it  on  was  this :  Here,  he  says, 
the  defendant,  by  a  contractor  and  by  agents  under  him,  was 
repairing  his  house ;    the  repairs  were  done  at  his  expense^ 
and   the   repairing   was   his   act.      Heath,  J.,  founded   his 
opinion  upon  the  single  point  that  all  the  subcontracting 
parties  were  in  the  employ  of  the  defendant.     And  Eooke, 
J.,  stated  the  general  proposition  that    he  who   has   work 
going  on  for  his  benefit,  and  on  his  own  premises,  must  be 
civilly  answerable  for  the  acts  of  those  whom  he  employs. 
In  the  case  of  a  loss  by  the  misconduct  of  a  servant,  the 
party  injured   has   no  means  of  ascertaining  whether   due 
caution  was  exercised  by  the  master  in  employing  him  or 
prudence  in  retaining  him  ;  and  in  the  case  of  a  controversy 
between  the  master  and  the  servant  as  to  which  was  the  real 
delinquent,  the  owner  of  the  property  must    generally  be 
without  the  necessary  evidence  to  charge  the  liability  upon 
the  master.     The  rule  which  the  law  has  adopted,  by  which 
the  master  is  held  responsible  for  the  acts  of  his  servants,  is 
the  one  best  calculated  to  secure  the  observance  of  good 
faith  on  the  part  of  persons  intrusted  with  the  property  of 
others.     The  motive  of  self-interest  is  the  only  one  adequate 
to  secure  the  highest  degree  of  caution  and  vigilance  by  the 
master. 

§  48.  But  where,  for  aught  that  appears,  the  trespasses 
were  voluntary  on  the  part  of  the  defendant's  employees,  and 
unconnected  with  the  employment,  no  presumption  arises 
that  the  defendant  authorized  the  unlawful  acts.  Nor  can 
an  inference  be  di-awn  against  him  by  reason  of  his  omission 


§  48.         LIABILITY   OF  MASTER  FOE,  ACTS   OF   SERVANT.  A9 

to  forbid  the  acts,  in  the  absence  of  proof  that  he  knew  that 
his  employees  had  committed  or  intended  to  commit  them. 
In  an  action  of  tresj)ass  quare  clausmn  f regit.,  the  judge 
charged  the  jury  that,  if  they  should  find  that  the  defendant 
employed  workmen  to  cut  and  convert  into  coal  wood  upon 
his  land,  and  deliver  the  coal  at  his  furnace ;  and  the  work- 
men, in  order  to  transport  the  coal  to  the  furnace,  cut  and 
made  roads  on  the  plaintiff's  land,  and  transported  the  coal 
over  the  same  with  the  defendant's  teams  and  carts,  and  de- 
livered the  coal  at  the  furnace  for  the  defendant's  benefit,  the 
presumption  was,  that  the  acts  of  the  workmen  were  done 
by  the  authority  and  direction  of  the  defendant,  unless  he 
showed  that  he  had  forbidden  the  workmen  from  going  on 
to  the  plaintiff's  land  and  doing  the  acts  complained  of 
But  a  verdict  having  been  found  for  the  plaintiff,  the  Supreme 
Court  granted  a  new  trial  for  misdirection.^     In  a  case  in 
New  Hampshire,  the  following  instruction  was  held  errone- 
ous :  "  That  if,  after  the  line  was  ascertained  and  well  known 
to  the  defendant,  the  defendant  went  upon  the  plaintiff's 
land  and  hauled  away  the  timber  for  his  own  use,  that  would, 
in  law,  be  an  afiirmance  of  what  his  servant  had  done  in  cut- 
ting over  the  line,  and  render  the  defendant  answerable  for 
the  act  of  the  servant,  in  the  same  manner  as  if  he  had  know- 
ingly and  intentionally  committed  the  act  himself"     Carry- 
ing the  timber  away  might  have  had  some  tendency  to  have 
convinced  the  jury  that  the  defendant  was  cognizant  of  and 
approved  the  original  cutting ;  but  such  would  not  have  been 
the  necessary  legal  effect  of  tlie  evidence  as  a  rule  of  law ; 
and  most  clearly,  an  affirmance  of  the  cutting  in  this  manner 
would  not  have  altered  the  original  nature  of  the  act,  so  as 
to  have  rendered  that  wilful  and  malicious  that  was,  orio-in- 
ally,  an  unintentional  and  accidental  trespa'js.     Could  it  have 
had  any  bearing  in  this  point  of  view,  it  would  only  have 
been  for  the  consideration  of  the  jury.     But  the  evidence  was 

'  Churcli  V.  Mansfield,  20  Conn.  384. 
Vol.  I.— 4 


50  TEESPASS   AS  A  REMEDY.  §  49^ 

not  submitted  to  tlie  jury  in  tliis  manner,  but  was  held  to  be 
conclusive  against  the  party  as  a  matter  of  law.^ 

5.  lAahility  of  principal  for  lorongful  a-cts  of  agent. 

§  49.  As  the  law  upon  this  subject  is  founded  upon  the 
same  analogies  as  exist  in  the  case  of  master  and  servant,  but 
little  need  be  said  under  this  head ;  especially  as  most  of 
the  reported  decisions  relate  not  to  positive  wrongs  com- 
mitted by  agents,  but  to  nonfeasances  or  mere  omissions  of 
duty.  It  may  be  observed  that  the  principal  is  liable  in  a 
civil  suit  to  third  persons  for  the  torts  of  his  agent  in  the 
course  of  his  employment,  although  the  principal  did  not  au- 
thorize, or  indeed  know,  of  such  misconduct,  or  even  if  he 
forbade  the  acts  or  disapproved  of  them.^  This  rule  of  lia- 
bility is  not  based  upon  any  presumed  authority  in  the  agent 
to  do  the  acts,  but  upon  the  ground  of  public  policy,  and 
that  it  is  more  reasonable,  where  one  of  two  innocent  persons 
must  suffer  from  the  wrongful  acts  of  a  third  person,  that  the 
principal,  who  has  placed  the  agent  in  the  position  of  tnist 
and  confidence,  should  suffer  than  a  stranger.  All  that  is 
necessary  to  render  the  principal  liable  for  the  malfeasance 
or  torts  of  the  agent  is,  that  the  tort  be  committed  in  the 
course  of  the  agency ;  ^  not  that  the  agency  authorized  it,  but^ 
as  it  is  expressed  by  Paley,*  that  the  employment  afforded 
the  means  of  committing  the  injury.  The  principal  is  not, 
however,  liable  in  trespass  for  the  wrongful  acts  of  his  agent 
in  matters  beyond  the  scope  of  the  agency,  unless  he  has  ex- 
pressly authorized  them  to  be  done,  or  has  subsequently 
adopted  them  for  his  use  and  benefit,  with  notice  of  the 
illegality.*     Where  a  broker,  under  a  warrant  from  the  land- 

'  Batchelder  v.  Kelly,  10  New  Hamp.  436. 

'  Storv  on  Agency,  §§  308,  452,  456;  Perkins  v.  Smith,  Saver,  40;  Lane  v. 
Cotton.  12  Mod.  472;  Hunter  v.  The  Hudson  River  Iron  Co.  20  Barb.  493;  Phila. 
R.  R.  Co.  V.  Derby,  14  How.  468;  Southwick  v.  Estes,  7  Cush,  385. 

^  Croft  V.  Alison,  4  Barn.  &  Aid.  590;  Puryear  v.  Thompson,  5  Humph.  Tenn. 
397;  Harris  v.  Nicholas,  5  Munf.  483;  Brown'v.  Purviance,  2  Harris  &  Gill,  316; 
Kerns  v.  Piper,  4  Watts,  222, 

^  Dunlap's  Paley  Agency,  p.  300. 

*  When  a  general  agent  commits  or  orders  a  wilful  trespass  to  be  committed,. 


§  50.    sheeiff's  responsibility  for  acts  of  deputy.        51 

lord,  authorizing  him  to  distrain  the  goods  and  chattels  of 
the  tenant,  seized  a  fixtm^e  which  was  afterward  sold  and  the 
proceeds  paid  to  the  landlord,  it  was  held  that  the  receipt  of 
the  proceeds  did  not  make  the  landlord  a  trespasser,  it  not 
being  shown  that  he  was  aware  of  the  illegal  seizure.^ 

6.   Responsibility  of  sheriff  for   the  lorongful  acts  of  his 

deputy. 

§  50.  An  action  of  trespass  may  be  maintained  against  a 
sheriff  for  the  wrongs  of  his  deputy,  although  no  immediate 
command,  consent  or  recognition  by  the  sheriff  of  the  act 
alleged  to  be  a  trespass  be  proved ;  ^  and  without  averring 
the  misfeasance  of  the  deputy ;  the  law,  for  the  sake  of  a  more 
convenient  and  effectual  remedy,  proceeding  upon  the  assumj^- 
tion  that  the  act  of  the  deputy  is  the  act  of  the  sheriff.  In 
Pratt  V.  Bunker,^  it  was  contended  that  the  trespass  proved 
was  committed  by  one  Williams,  and  that  there  was  no  proof 
that,  in  committing  it,  he  was  acting  under  color  of  legal 
process,  or  as  deputy  of  the  defendant.  But  it  was  held  that, 
as  the  plaintiff  had  proved  that  Williams  took  the  property 
and  sold  it  at  auction,  and  that  he  was  then  the  deputy  of 
the  defendant,  taken  in  connection  with  the  defendant's  brief 
statement  that  such  acts  w^ere  done  by  virtue  of  legal  process 
against  one  Kines,  who  was  the  owner  of  the  property,  it  was 
prima  facie  sufficient  to  maintain  the  action,  and  to  call  on 
the  defendant  to  sustain  his  justification.  Where  a  trespass 
has  been  committed  by  the  deputy,  the  party  aggrieved  has 
his  election  to  sue  either  the  sheriff  or  deputy ;  but  he  cannot 
sue  both.  If  he  chooses  to  bring  an  action  against  the  dep- 
uty, and  proceeds  to  judgment  and  execution  against  him, 
there  can  be  no  good  reason  for  allowing  him  afterward  to 
resort  to  the  sheriff.*  * 

he  acts  without  the  scope  of  his  authority,  tlie  same  that  a  special  agent  would 
(Vanderbilt  v.  The  Richmond  Turnpike  Co.  3  N.  Y.  479). 

"  Freeman  v.  Rosher,  18  L.  J.  Q.  B.  340. 

'  Grinnell  v.  Phillips,  1  Mass.  530;  post,  §§  502,  503.  '  45  Maine,  569. 

"  Taft  V.  Metcalf,  11  Pick.  456;  Campbell  v.  Phelps,  17  Mass.  344. 

*  In  Grinnell  V.  Pliillips,  myra^  the  court  said:    "The  law  undoubtedly  is 


52  TRESPASS    AS   A  REMEDY.  §  51. 

7.   Action  against  corporations. 

§  51.  It  has  sometimes  been  said,  that  an  action  of  trespass 
cannot  be  maintained  against  a  corporation  ;  that  if  the  mem- 
bers of  a  corporation,  though  ever  so  formally  assembled,  do, 
or  agree  to  do,  an  act  which  is  illegal  and  wrong,  the  law  will 
not  consider  it  the  act  of  the  corporation,  but  of  the  acting 
individuals  in  their  natural  capacities ;  that  as  such  act 
binds  no  one,  so  it  authorizes  no  one  to  carry  it  into  effect, 
and  if  an  injury  ensue,  all  who  act  in  the  business  are 
volunteers  therein.^  Bat  it  has  Ions:  been  held,  that  althous:h 
corporations  can  only  act  through  the  instrumentality  and 
agency  of  others,  yet  that  they  are  liable  in  trespass  for  torts 
authorized  or  commanded  by  them."^  *     In  an  early  case  in 


that,  in  trespass,  all  are  principals,  as  well  those  who  command  or  procure,  as 
those  who,  being  present,  are  the  immediate  agents  in  the  act  complained  of. 
Therefore,  in  declaring  in  actions  of  tliis  nature,  it  is  never  necessary  to  distin- 
guish between  the  adviser,  the  companions,  and  the  agent,  for  each  and  all  are 
answerable  severally  and  jointly,  and  all  as  principals.  That  this  is  the  legal 
effect,  where  the  proof  is  of  a  direct  command,  is  not  disputed.  That  an  im- 
plied command  has  the  like  operation,  appears  by  the  legal  doctrine  respecting 
masters  and  servants.  It  seems  to  be  well  established,  by  ancient  and  modern 
decisions,  that  the  master  is  liable  for  every  act  done  by  the  servant  in  the  course 
of  his  emjjloyment ;  the  law  implying,  from  their  relation,  and  from  the  circum- 
stances of  the  act,  that  it  is  done  by  the  procurement  and  command  of  the  mas- 
ter. The  law  views  the  relation  of  a  sheriff  and  his  deputies  in  the  same  light. 
In  official  acts,  they  are  not  distinguishable  from  each  other.  The  relation  of 
command  and  agency  is  more  intimate  and  direct;  and  the  responsibility  of  the 
principal  or  master  for  the  acts  of  the  servant  is  maiutaiued  upon  stronger  reasons 
of  puldic  policy  and  regard  to  the  public  welfare,  than  in  anj  case  which  can  be 
supposed  within  the  common  relation  of  master  and  servant." 

'  Wilcox  V.  Sherwin,  1  Chipman,  72;  Foote  v.  Cincinnati,  9  Ham.  31. 

""  6  Vin.  Abr.  288,  289*;  Main  v.  Northeastern  R.  R.  Co.  12  Rich.  82; 
Lyman  v.  The  White  River  Bridge  Co.  3  Aiken,  255 ;  Lee  v.  The  Village  of 
Sandy  Hill,  40  N.  Y.  4-42;  Conrad  v.  The  Village  of  Ithaca,  16  lb.  158; 
Howell  V.  The  City  of  Buffalo,  15  lb.  512;  Hickok  v.  The  Trustees  of  the 
Village  of  Plattsburgh,  16  lb.  161,  note;  Weet  v.  The  Trustees  of  the  Village  of 
Brockport,  lb.  161;  Storrs  v.  The  City  of  Utica,  17  lb.  104;  post,  §§  582,  937. 

*  In  Lyman  v.  The  White  River  Bridge  Co.  snpi-a,  the  action  was  trespass  for 
breaking  and  entering  the  plaintiff 's  close,  and  erecting  thereon  a  bridge,  and 
the  general  question  was  whether  an  action  of  trespass  would  lie  against  a 
corporation.  The  count,  in  holding  the  affirmative  said  :  "  It  is  urged  that  as  a 
corporation  is  an  artilical  being,  intangible,  and  existing  only  in  contemplation 
of  law,  it  cannot,  as  such,  commit  or  be  sued  f(U'  a  tort,  but  the  action  must  be 
brought  against  each  person  who  committed  the  tort  by  name;  and  this  prop- 
osition appears  not  only  to  receive  countenance,  but  support  from  some  of  the 
authorities.  But  on  looking  into  the  books,  we  find  many  cases,  in  which  actions 
en  the  case  arising  e.v  delicto,  where  the  plea  is  not  guilty,  have  been  maintained 
against  corporations  at  common  law.  If  an  action  on  the  case  will  lie  against 
a  corporation  for  a  tort,  there  seems  to  be  no  good  reason  why  trespass  will  not 


§  51.  ACTION   AGAINST  CORPORATIONS.  53 

Massachiisetts,  Chief  Justice  Parsons,  in  delivering  the 
opinion  of  the  court,  said :  "  That  a  capias  does  not  lie 
against  a  corporation  is  evident ;  but  that  no  action  of  tres- 
pass lies,  is  questionable.  For  it  is  agreed  that  a  corporation 
may  be  fined  on  indictment,  and  the  fine  levied  by  distress ; 
and  why  may  not  a  corporation  be  amerced,  and  the  amerce- 
ment be  collected  in  the  same  manner?  "  And  he  proceeds 
to  cite  a  number  of  ancient  cases,  in  which  trespass  was  held 
to  lie  against  a  corporation ;  such  as  trespass  for  distraining 
the  plaintifiT's  cattle  until  he  paid  a  toll,  which  he  was  not 
bound  to  pay  ;  trespass  for  disturbing  the  plaintiif  in  the 
pi'ofits  of  his  liberties,  and  for  disturbing  him  in  holding  a 
leet ;  and  in  an  assize,  as  a  disseizor  with  force.  He  con- 
cludes by  saying,  that  it  is  very  clear  from  the  exam- 
ination of  the  old  books,  that  some  actions  of  trespass, 
might,  at  common  law,  be  maintained  against  aggregate 
corporations.^ 


also  lie.  The  distinction  between  the  two  actions  is  not,  whether  the  act 
complained  of  was  accompanied  with  force,  or  whether  there  was  an  intent  to 
do  the  injury;  but  whether  the  injury  was  the  direct  and  immediate  effect  of 
the  act  complained  of,  or  was  the  collateral  consequence  of  some  act  jjreviously 
done.  If  a  corporation  is  liable  in  case,  for  consequential  damages  proceeding 
from  an  act  authorized  by  them,  they  may  and  ought  to  be  liable  in  trespass  for 
an  immediate  or  direct  injury  arising  from  an  act  authorized  by  them  or  done  by 
their  command.  Indeed,  there  seems  to  be  no  difference,  either  on  principle,  or 
on  technical  grounds,  as  to  the  liability  of  a  corporation  in  actions  of  the  case 
ex  delicto^  and  actions  of  trespass.  In  reason,  and  on  principle,  if  a  man  Is 
injured  by  any  tortious  act  of  a  corporation,  done  by  its  authority,  he  ought  to 
have  his  remedy  by  action  against  them,  as  much  as  against  a  natural  person. 
In  actions  in  form  ei  delicto,  as  case,  trover,  trespass,  (fcc,  the  rule  is  that  the 
action  may  be  brought  either  against  the  person  who  actually  committed  the 
injury,  or  against  him  who  commanded  or  authorized  it.  And  it  is  a  general 
principle  that  a  corporation  is  liable  for  the  acts  of  its  servants,  agents  or 
officers  while  acting  within  the  limits  of  the  authority  delegated  to  them  by  the 
corporation,  or  acting  under  its  command.  It  is  a  falhicy  to  say,  that  because 
a  corporation  has  no  natural  existence  or  physical  powers,  they  cannot  commit 
a  trespass.  It  is  true,  they  cannot  commit  a  trespass  but  thi'ough  the  in- 
strumentality of  others;  neither  can  they  make  a  contract,  or  do  any  other 
corporate  act  whatever,  but  through  the  agency  of  others.  Considering  the 
numerous  incorporated  companies,  established  among  us  for  various  purposes, 
having  extensive  powers,  and  carrying  on  extensive  business,  it  seems  necessary 
that  this  principle  should  be  adopted;  for  without  it,  the  party  injured  might, 
in  many  cases,  be  witiiout  any  adequate  remedy." 

A  demurrer  to  a  declaration  charging  a  corporation  in  trespass,  admits  that 
an  authority  to  do  the  acts  complained  of,  was  given  by  the  corporation,  either 
under  their  corporate  seal,  or  by  their  corporate  vote  (Ibid). 

'  Riddle  v.  Props,  of  Merrimack  Locks  &  Canal,  7  Mass.  169. 


54  TRESPASS    AS   A  REMEDY.  §§  52,  53. 

8.  Liability  of  partners. 

§  52.  Partners  are  liable  for  a  trespass  by  themselves,  or 
their  agents,  employees,  or  servants  in  the  legitimate  conduct 
of  the  partnership  business ;  or  if  the  trespass  be  done  by 
the  direction  of  their  agent  acting  within  the  scope  of  his 
powers ;  or  by  workmen,  under  the  same  qualification  while 
in  the  employment  of  the  firm.^  But  a  partner  cannot  make 
his  copartners  responsible  for  a  trespass  committed  by  him, 
unless  the  wrong-doer  was  acting  within  the  proper  scope 
and  business  of  the  partnership,  or  the  firm  afterward  take 
advantage  of,  and  adopt  the  transaction.^ 

9.  Action  hy  and  against  executors. 

§  53.  An  action  of  trespass  will  not  lie  at  common  law 
for  or  against  executors  for  injuries  done  to  or  by  their  tes- 
tators.^ But  the  common  law  doctrine,  that  torts  die  with 
the  person,  has  been  largely  innovated  upon  by  modern 
legislation,  in  consequence  of  its  harsh  and  unjust  operation 
in  many  cases,  so  that  now,  in  some  of  the  States,  hardly 
any  cause  of  action  for  damages,  either  to  person  or  prop- 
erty, is  allowed  to  be  defeated  by  the  death  of  either  the 
party  injured,  or  the  party  liable.* 


"  McKnight  v.  RatcliflF,  44  Penn.  St.  R.  156. 

"  Petrie  v.  Lamont,  Car.  &  M.  93 ;  Taylor  v.  Jones,  42  N.  Hamp.  25. 

'  Middleton  v.  Robinson,  1  Baj',  58 ;  Gordon  v.  Robinson,  1  Browne,  325 ; 
see  post,  §§  533,  939. 

*  The  New  York  Revised  Statutes  (xo\.  3d,  5th  ed.  p.  746)  provide  that  for 
"wrongs  done  to  the  property,  rights,  or  interests  of  another,  for  which  an  action 
might  be  maintained  against  the  wrong-doer,  such  action  may  be  brought  by  the 
executors  or  administrators  of  the  wrong-doer  after  the  death  of  the  latter.  But 
the  foregoing  does  not  apply  to  actions  for  assault  and  battery  and  false  im- 
prisonment. When  the  wrongful  act  causes  the  death  of  the  person  injured, 
although  occurring  under  such  circumstances  as  amount  in  law  to  a  felony,  the 
right  of  action  survives  to  the  personal  representatives ;  but  the  action  must  be 
commenced  within  two  years,  and  the  amount  of  recovery  cannot  exceed  five 
thousand  dollars  (lb.  p.  589). 

In  Vermont,  among  other  statutes  upon  this  general  subject,  there  is  one 
providing  that  in  actions  to  recover  damages  for  any  hodily  hurt  or  injury,  the 
death  of  either  party  shall  not  defeat  the  action,  but  the  same  may  be  prosecuted 
hj  or  against  the  representative  of  such  deceased  party.  In  Whitcomb  v.  Cook, 
38  Vt.  477,  which  was  an  action  brought  by  an  administrator  for  an  alleged  un- 
lawful arrest  and  imprisonment  by  the  defendant,  the  question  arose  whether  it 
was  an  action  within  the  foregoing  statute,  for  a  bodily  hurt  or  injury.     It  was 


§  54.  AUTHORITY   DERIVED  FROM   STATUTE.  55 

10.  Liability  of  ])ersons  lohose   autliority  is   derived  from 

statute. 

§  54.  It  is  a  general  rule  that  whenever  a  person  justifies 
under  any  autliority  whatever,  he  must  show  every  matter 
and  part  of  the  authority  under  which  he  justifies.  This 
rule  is  especially  aj^j^licable  to  persons  whose  powers  are 
solely  derived  from  statute.  Justices  of  the  peace  have  no 
common  law  jurisdiction  in  civil  cases.  They  are  confined 
strictly  to  the  authority  which  the  statute  has  conferred,  and 
can  take  nothing  by  implication.  So  far  as  regards  mere 
matters  of  form,  and  the  regularity  of  their  proceedings, 
when  parties  are  properly  before  them,  their  acts  will  be 
viewed  with  liberality.  But  if  they  proceed  in  a  matter  not 
within  their  cognizance,  or  without  having  acquired  jurisdic- 
tion over  the  party  in  the  forms  prescribed  by  law,  any 
judgment  which  they  may  render  will  be  absolutely  void. 
This  doctrine  is  not  peculiar  to  courts  held  by  justices  of  the 
peace  in  civil  cases,  but  apj)lies  to  all  courts  and  ofiicers 

held  that  the  statute  embraced  every  case  of  physical  injury  to  the  person  caused 
in  any  unlawful  manner.  The  court  said:  "We  think  the  clear  and  plain  in- 
tent of  the  statute  was  to  make  all  actions  survive  when  the  cause  of  action  was 
for  a  physical  injury  to  the  person,  caused  in  any  unlawful  manner.  The  word 
bodily  was  used  so  as  to  carefully  exclude  certain  actions  which  are  sometimes, 
by  law  writers,  included  in  the  class  of  actions  for  personal  injuries,  such  as 
actions  of  slander,  and  for  malicious  suits  or  prosecutions.  The  defendant 
claims  that  the  language  of  this  act  should  be  strictly  construed,  as  an  act  in 
derogation  of  the  common  law.  That  principle  is  entirely  sound,  and  is  recog- 
nized by  the  courts  in  all  cases  to  which  it  properly  applies,  when  some  common 
law  right  is  taken  away.  But  it  is  also  a  settled  rule  in  the  construction  of  stat- 
utes, that  remedial  statutes  are  to  be  liberally  construed,  which,  in  our  judg- 
ment, is  the  proper  rule  to  be  applied  to  this  statute.  It  is  made  to  preserve  an 
already  accrued  and  existing  right  from  being  lost  by  this  harsh  and  technical 
rule  of  the  common  law.  One  may  have  suffered  great  loss  and  wrong  by  the 
unlawful  and  wicked  act  of  another.  If  the  wrong-doer  dies,  is  it  not  just  and 
right  that  the  injured  i)arty  should  be  recompensed  out  of  the  estate  of  the  per- 
petrator ?  Or,  if  the  injured  party  dies,  ought  not  the  successors  to  his  rights 
and  property  to  be  entitled  to  the  recompense,  rather  than  that  the  wrong-doer 
should  escape  all  the  consequences  of  his  act  ?  But  without  resorting  to  any 
other  rule  than  the  plain  and  obvious  meaning  of  the  language  of  the  statute,  we 
are  satisfied  it  covers  the  case  of  an  unlawful  arrest  and  imprisonment  of  the 
plaintiff's  body ;  and,  in  our  view,  it  would  be  monstrous  to  hold  that  an  action 
for  a  slight  blow  or  kick  survived,  and  a  claim  for  being  unlawfully  incar- 
cerated in  a  prison,  however  long,  did  not,  but  died  with  the  person  of  the 
plaintiff." 

In  Wisconsin  (under  Rev.  Sts.  ch.  135,  sects.  12,  13),  an  executor  or  admin- 
istrator may  maintain  an  action  for  injuries  done  to  a  married  woman  which 
■  -caused  her  death  (Whiton  v.  Chicago  &c.  R.  Co.  21  Wis.  305j. 


56  TRESPASS    AS  A  EEMEDT.  §§  55,  56. 

exercising  a  special  and  limited  jurisdiction.  They  must 
pursue  their  authority,  or  their  acts  will  be  void.  The 
principal  distinction  between  courts  of  general  and  those  of 
limited  jurisdiction  is,  that,  in  the  one  case,  jurisdiction  will 
be  presumed  until  the  contrary  appears,  while,  in  the  other, 
no  such  presumption  is  indulged ;  but  they  must  show  their 
authority  in  every  case.  In  pleading  the  judgment  of  a 
superior  court,  it  is  enough  to  say  that  judgment  was  ren- 
dered ;  and  it  will  lie  on  the  other  party  to  show  a  want  of 
power.  But  in  pleading  the  judgment  of  an  inferior  tribu- 
nal, the  authority  to  decide,  as  well  as  the  judgment,  must  be 
alleged.^  Where  a  statute  prohibits  jurisdiction,  or  where  a 
prohibition  is  necessarily  implied,  by  its  being  vested  exclu- 
sively in  another  tribunal,  no  consent  can  give  jurisdiction.^ 

§  55.  What  is  true  of  inferior  courts,  is  also  true  of  the 
doings  of  corporate  bodies  erected  by  law  for  private  and 
local  purposes.  Such  corporations,  though  they  derive  their 
existence  and  powers  from  public  laws,  are  created  for 
special  objects.  Their  organization,  and  the  proceedings  of 
those  who  claim  to  act  under  them,  cannot  be  known  judi- 
cially until  proved,  and  must  be  shown  to  be  in  pursuance 
of  the  law  which  creates  and  authorizes  them,  otherwise 
they  are  totally  void.^ 

§  56.  The  principle  is  universal  that  whenever  any  per- 
sons assume  to  act  under  a  special  and  limited  power  con- 
ferred by  law,  their  doings  may  be  avoided  by  showing  that 
they  had  no  jurisdiction,  or  that  they  exceeded  the  limits  of 
their  authority,  and  that  they  thereby  became  trespassers.^ 

'  Hoose  V.  Sherrill,  16  Wend.  33;  Barrett  v.  Crane,  16  Vt.  246;  Evertsou  v. 
Sutton,  5  Wend.  281;  Batchelder  v.  Currier,  45  N.  Hamp.  460;  Smith  v. 
Knowlton,  11  N.  Hamp.  191;  Kittredge  v.  Emerson,  15  N.  Hamp.  227;  San- 
born V.  Fellows,  22  II3.  473;  State  v.  Richmond,  26  lb.  232;  Bigelow  v. 
Stearns,  19  Johns.  39;  Allen  v.  Gray,  11  Conn.  95;  Smith  v.  Rice,  11  Mass.  507; 
post^  §  359. 

^  Batchelder  v.  Currier,  sitpra  ;  People  v.  White,  24  Wend.  520;  Heyer  v.. 
Burger,   1  Hoffman's  Ch.  R.  1 ;  Blatchley  v.  Moser,  15  Wend.  215. 

^  Bates  V.  Hazeltine,  1  Vt.  81. 

*  Cate  V.  Cate,  44  N.  Hamp.  211;  Sanborn  v.  Fellows,  22  lb.  473;  State  v.. 
Richmond,  26  lb.  236;  Blood  v.  Sayre,  17  Vt.   609;  j^ost,  §  362. 


§  57.  AUTHORITY    DERIVED   FROM   STATUTE.  57 

Where,  therefore,  the  common  council  of  a  city  directed  the 
mayor  to  sign  and  issue  a  warrant  for  the  collection  of  an 
illegal  assessment,  which  he  accordingly  did,  it  was  held 
thai  he  was  liable  as  a  trespasser  for  property  taken  under 
the  warrant.-'  In  Robinson  v.  Dodge,^  the  trustees  of  a 
school  district  were  held  trespassers,  because  they  issued 
their  warrant  to  collect  a  tax,  when  the  only  error  was  tliat 
the  district  meeting  had  not  specified  the  amount  of  the  tax 
to  be  raised,  that  being  required  by  the  statute. 

§  57.  Justices  of  the  peace  have  always  been  held  re- 
sponsible to  individuals  for  all  the  injurious  consequences 
arising  from  every  illegal  act  they  may  have  done,  either  in 
the  execution  of  their  ministerial  powers  and  duties,  or  in 
the  adjudication  of  causes  over  which  they  have  no  jurisdic- 
tion ;  and  all  who  directly  and  knowingly  partici23ate  with 
them  are  equally  liable.^  In  Wallsworth  v.  McCuUough,*  a 
justice  of  the  peace  was  held  to  be  a  trespasser  who  issued  a 
warrant  in  a  case  of  bastardy  without  the  application  of  an 
overseer  of  the  poor,  though  the  overseer  subsequently  rati- 
fied the  act.  Where  the  plaintiff  procured  a  second  execu- 
tion to  be  issued  by  a  justice,  after  the  first  had  been 
indorsed  satisfied,  upon  the  suggestion  that  the  first  execu- 
tion was  lost  or  destroyed,  it  was  held  that  the  justice  and 
plaintiff  were  both  trespassers.^  Schermerhorn  v.  Tripp  ^ 
was  an  action  of  trespass  against  a  justice  of  the  peace,  a 
constable,  and  the  plaintiff  in  a  suit  before  the  justice,  for 
taking  goods  under  an  execution  issued  by  the  justice,  to 
which  the  defendants  joined  in  pleading  the  general  issue. 
Judgment  having  been  rendered  for  the  defendants  in  the 
Common  Pleas,  it  was  reversed  by  the  Supreme  Court,  on 


'  Williams  v.  Brace,  5  Conn.  190.  ^  18  Johns.  351. 

^  Sullivan  v.  Jones,  3  Gray,  570;  Clarke  v.  May,  lb.  410;  Briggs  v.  Ward- 
well,  10  Mass.  357  ;  Percival  v.  Jones,  3  Johns.  Cas.  49;  Russell  v.  Perry,  14  N. 
Ilamp.  153;  Kennedy  v.  Terrill,  Hardin,  490;  Poulk  v.  Slocum,  3  Blackf.  421; 
Rembert  v.  Kelly,  Harper,  65;  Alexander  v.  Hoyt,  7  Wend.  89. 

'  10  Johns.  93. 

'  Lewis  V.  Palmer,  G  Wend.  3G7.  "  3  Caines,  108. 


58  TRESPASS    AS  A  REMEDY.  §  57. 

tlie  groimd  that  tlie  justice  was  disqualified  and  had  no 
jurisdiction,  for  the  reason  that  he  was  a  tavern-keeper,  and 
that,  as  the  others  united  with  him  in  pleading  the  general 
issue,  they  were  all  trespassers." 

*  The  New  York  statute  provides  that  no  justice  of  the  peace  being  an  inn- 
holder  or  tavern-keeper  in  fact  shall  have  jurisdiction;  but  that  if  a  judgment 
shall  have  been  rendered  by  him  before  he  became  disqualified,  he  may  issue 
execution. 

When  penalties  are  to  be  recovered  by  information  before  justices  of  the 
peace,  under  a  statute  which  directs  that  the  justices  shall  summon  the  person 
against  whom  the  information  is  exhibited  to  appear  and  plead  to,  and  to  attend 
the  healing  of  the  information,  at  a  time  and  place  named  in  the  summons,  such 
summons  to  be  served  "ten  days  at  the  least  "  before  the  time  appointed;  there 
must  be  ten  clear  days  between  the  service  and  the  day  of  hearing ;  and  where  the 
conviction  showed  on  its  face  that  the  party  was  convicted  ex  'parte  on  default  of 
appearance  to  a  summons  appointing  too  early  a  day,  it  was  held  that  such  con- 
viction was  no  defense  to  an  action  of  trespass  for  enforcing  it  (Mitchell  v.  Fos- 
ter, 13  Ad.  &  E.  472;  9  Dowl.  P.  C.  527). 

Case  V.  Shepherd,  2  Johns.  Cas.  27,  was  an  action  of  trespass  quare  clausum 
fregit^  for  treading  down  the  plaintiff's  gras  >  and  cutting  and  carrying  away 
grain.  It  appeared  tliat  the  plaintiff  was  indicted  for  trial  before  the  defendant, 
who  was  a  justice  of  the  peace,  under  the  act  to  prevent  forcible  entries  and 
detainers;  that  the  plaintiff',  having  pleaded  to  the  indictment,  obtained,  before 
trial,  a  cei-tiorari  from  the  Supreme  Court  to  remove  all  the  proceedings,  which 
he  delivered  to  the  defendant,  who,  notwithstanding,  proceeded  to  try  and  con- 
vict the  plaintiff ;  and  that  the  plaintiff  was  thereupon  turned  out,  and  one  Bull 
put  into  possession  of  the  premises.  By  the  court:  "There  can  be  no  doubt 
that  the  delivery  of  the  certiorari  to  the  justice  superseded  his  powers,  and  ren- 
dered all  subsequent  proceedings  before  him  coram  nan  judice  and  void.  As  the 
magistrate  holds  a  court  of  special  and  limited  jurisdiction,  and  proceeded  after 
his  power  was  taken  away  by  the  certiorari,  he  became  a  trespasser,  and  is  liable 
as  such." 

Under  the  statute  of  Massachusetts  of  1783,  ch.  58,  §  1,  the  party  obtaining 
judgment  in  a  civil  action  is  entitled  to  have  his  execution  thereon  at  any  time 
after  the  expiration  of  twenty-four  hours,  and  within  one  year  next  after  the 
entering  up  of  such  judgment.  In  Briggs  v.  Wardwell,  10  Mass.  356,  the  ques- 
tion arose,  under  the  foregoing  statute,  whether  an  action  of  trespass  would  lie 
against  a  justice  of  the  peace  who  issued  execution  in  a  civil  action  in  less  than 
twenty-four  hours  after  judgment.  It  was  held  that  it  would.  Jackson,  J.,  de- 
livering the  opinion  of  the  court,  said:  "We  are  of  opinion  that  the  issuing  of 
the  execution  in  this  case  was  a  ministerial  act  of  the  defendant,  for  which  he 
is  liable  to  the  party  injured,  in  like  manner  as  the  clerk  of  any  other  court 
would  be  who  should,  without  any  express  order  of  the  court,  issue  an  execution 
contrary  to  the  provisions  of  the  statutes.  As  far  as  respects  this  question,  it 
is  as  if  there  were  no  judgment  subsisting  until  the  expiration  of  the  twenty- 
four  hours.  There  is  nothing  on  which  an  execution  could  lawfully  issue;  and 
the  defendant  might  as  well  have  issued  it  before  judgment  was  rendered,  or 
after  the  expiration  of  the  year." 

In  Kendall  v.  Powers,  4  Mete.  553,  the  doctrine  laid  down  in  Briggs  v. 
Wardwell,  supra,  that  a  magistrate  is  liable  to  a  party  in  a  civil  action  for  dam- 
ages resulting  to  him  from  the  illegal  issuing  of  a  final  process  upon  a  judgment, 
was  considered,  both  by  the  cousel  of  the  parties  and  by  the  court,  so  familiarly 
and  firmly  established,  that  it  was  not  even  adverted  to  as  presenting  any  possible 
question  (See  Sullivan  v.  Jones,  2  Gray,  570). 

Although  the  magistrate  has  jurisdiction  of  the  offense,  and  a  right  to  issue 
process  against  the  person,  yet  if  such  process  be  issued  without  complaint,  it  is 


§§  58,  59.  AUTHORITY  DERIVED  FROM   STATUTE.  59 

§  58.  When  a  magistrate  issues  process  without  authority 
of  law,  the  grouud  of  his  liability  is,  that  he  has  given  a 
personal  direction  or  request  to  do  the  acts  which  the 
process  directs  to  be  done.  His  responsibility  is  therefore 
limited  to  such  acts  as  are  done  according  to  the  mandate  of 
the  instrument.  In  determining  w^hether  the  acts  were  done 
in  pursuance  of  the  process,  the  same  considerations  are 
applicable  which  would  have  belonged  to  the  case,  had  the 
process  been  entirely  legal.  In  the  case  of  an  attachment, 
it  will  be  considered  a  command  to  attach,  and  not  to  sell 
property ;  and  to  attach  the  property  of  the  defendant,  and 
not  of  another.  It  is  a  direction  to  the  particular  officer,  or 
class  of  officers  named,  and  not  a  different  one ;  and  if  a 
person  not  mentioned  or  referred  to  in  it,  undertake  to 
execute  it,  he  is  considered  not  only  as  having  volunteered, 
but  as  having  intended  to  act  officiously,  without  the  consent 
of  the  magistrate,  and  against  his  express  direction,  as 
contained  in  the  process.  The  doings  of  one  so  volunteering, 
are,  by  no  legal  intendment,  the  acts  of  the  magistrate,  as 
they  w^ere  not  performed  by  his  assent,  counsel,  or  procure- 
ment.^ 

§  59.  Where  a  statute  requires  a  justice  of  the  peace 
before  issuing  an  attachment  to  have  satisfactory  proof 
offered  him  of  the  departure  or  concealment  of  the  debtor, 
with  intent  to  defraud  his  creditors,  or  to  avoid  being 
personally  served  with  prpcess,  a  mere  error  in  judgment  as 
as  to  the  legality  of  the  proof  offered,  will  not  make  the 
magistrate  a  trespasser  by  issuing  the  attachment.  But 
such  proof  in  order  to  give  the  justice  jurisdiction,  must  be 

void,  and  all  concerned  are  trespassers  (Allen  v.  Gray,  11  Conn.  95,  per  Bissell, 
J.,  citing  Grumon  v.  Raymond,  1  Conn.  40;  Slocum  v.  Wheeler,  lb.  452;  Tracy 
V.  Williams,  4  Conn.  113;  Martin  v.  Marshall,  Hob.  03;  Perkins  v.  Proctor,  2 
Wils.  386;  Morgan  v.  Hughes,  2  Term  R.  225;  Smith  v.  Bouchier,  2  Stra.  993; 
Com.  Dig.  Tit.  Trespass,  C,  1 ;  Bac.  Abr.  Tit.  Trespass,  D,  2). 

In  Indiana,  a  justice  of  the  peace  who  causes  the  goods  of  an  absconding 
debtor  to  be  attached  witliout  the  previous  filing  of  a  bond,  according  to  the 
statute,  and  the  party  who  procures  the  writ  to-be  issued  are  trespassers  (Bar- 
keloo  V.  Randall,  4  Blackf.  476). 

'  Merritt  v.  Read,  5  Denio,  352. 


CO  TRESPASS   AS  A  EEMEDY.  §  60. 

at  least  colorable.  He  cannot  act  upon  his  own  knowledge 
or  mere  belief  on  tlie  subject,  however  well  founded.  Proof, 
in  the  sense  in  which  it  is  here  used,  means  legal  evidence, 
or  such  species  of  evidence  as  would  be  received  in  the 
ordinary  course  of  judicial  proceedings.  In  Vosburgh  v. 
Welch,^  it  appeared  that  the  evidence  upon  which  the 
justice  acted  did  not  amount  even  to  the  information  of  the 
constable,  that  the  debtor  had  departed  the  county,  or  was 
concealed  with  intent  to  defraud  his  creditors,  or  to  avoid 
being  served  with  process.  The  court  remarked  that  the 
justice  might  have  believed  the  fact  upon  mere  report,  or 
the  information  of  some  person  in  whom  he  had  confidence  ; 
but  that  that  was  not  satisfactory  proof  within  the  meaning 
of  the  law ;  that  the  return  of  the  constable  on  an  execution 
against  the  debtor,  was  not  such  proof;  and  that  as  the 
justice  must  be  considered  as  having  issued  the  attachment 
without  any  proof  whatever  of  the  departure  or  concealment, 
and  therefore  without  authority,  he  was  liable  as  a  tres- 
passer. 

§  60.  If  a  magistrate  have  jurisdiction,  his  acts,  though 
erroneous,  will  not  make  him  liable.^  Under  a  statute 
conferring  upon  a  justice  of  the  peace  jurisdiction  to  issue  a 
summons  as  the  first  process  in  the  commencement  of  a  suit 
before  him,  when  the  defendant  is  a  freeholder  or  an  in- 
habitant, having  a  family  within  the  county  where  the 
justice  resides,  if  a  summons  be  issued  in  a  case  in  which  it 
is  not  the  appropriate  process,  the  objection  to  be  available 
to  the  defendant  in  such  process,  must  be  taken  before  the 
justice ;  and  if  he  errs  in  his  decision,  his  general  power  will 
protect  him  and  all  ofiicers  concerned  in  the  execution  of 
the  process  from  being  treated  as  trespassers.  And  where 
upon  a  complaint  made  before  a  justice  of  the  peace,  for  an 
assault  and  battery,  the   warrant  was  irregular  in   form,  it 

'  11  Johns.  175 ;  but  see  Collins  t.  Ferris,  14  lb.  246. 

"^  Adkins  v.  Brewer,  3  Cowen,  206;  Blood  v.  Savre,  17  Vt.  609;  Lancaster  v. 
Lane,  19  111.  242;  Houlden  v.  Smith,  14  Jur.  598;  19  L.  J.  170;  Stanton  v. 
Schell,  3  Sandf.  323. 


§  Gl.         ACTION    IN  THE   CASE   OF   JOINT   WRONG-DOERS.  61 

was  held  that  as  the  magistrate  had  jurisdiction,  aud 
everythiDg  was  right  except  the  process,  the  defendant  by 
not  making  his  objection,  while  before  the  magistrate,  waived 
all  objection.^  ^' 

11.    Action  in  the  case  of  joint  wrong-doers. 

§  61.  We  have  seen^  that  where  an  immediate  injury  is 
committed  by  the  co-operation  of  several,  they  are  all  tres- 
passers ;  and  as  any  one  of  them  is  liable  for  the  acts  of  all, 
it  follows  that  they  may  be  sued  either  jointly  or  severally.^  f 

'  Com.  V.  Henry,  7  Cush.  512.  ^  Ante,  §  23;  and  see  post,  §  212. 

^  Allen  V.  Craig,  1  Green.  294 ;  post,  §  222. 

*  Horton  v.  Auchmoody,  7  Wend.  200,  was  an  action  against  a  justice  of  the 
peace  for  the  sale  of  the  property  of  the  plaintiff  on  an  execution  issued  under 
a  judgment  rendered  by  the  defendant  after  an  unauthorized  adjournment. 
The  Supreme  Court  held  that  the  justice  was  not  liable  as  a  trespasser,  and  that 
the  judgment  of  the  Common  Pleas  which  was  for  the  plaintiff,  must  be 
reversed.  Savage,  Ch.  J.,  delivering  the  opiuion,  said:  "The  argument  for 
the  plaintiff  in  error  is,  that  though  the  justice  once  had  jurisdiction,  he  had 
lost  that  junsdiction  ;  that  the  adjournment  being  an  act  not  authorized  by  law, 
the  cause  was  at  an  end,  and  any  further  proceeding  was  without  jurisdiction, 
as  much  so  as  a  judgment  would  be  without  any  previous  process.  It  must  be 
conceded,  that  so  far  as  the  parties  litigant  before  the  justice  in  that  suit  are 
concerned,  tliis  court  have  considered  an  unauthorized  adjournment  an  end  of 
the  suit;  but  where  a  remedy  is  sought  against  a  justice,  the  principle  of 
judicial  irresponsibility  should  be  interposed  as  far  as  it  is  applicable.  It  has 
been  held  in  some  of  the  cases,  that  where  the  plaintiff  refuses  or  neglects  to 
appear  upon  the  coming  in  of  the  jury  with  their  verdict,  it  is  irregular  to 
receive  the  verdict;  yet  in  such  a  case,  we  held  that  a  judgment  rendered  upon 
a  verdict  so  taken  was  not  void  but  voidable ;  that  the  justice  having  jurisdiction 
of  the  subject-matter  and  the  person,  had  power  to  enter  a  judgment  of  dis- 
continuance; that  the  plaintiff  was  for  that  purpose  at  least,  within  the  juris- 
diction of  the  justice,  and  that  a  judgment  in  his  favor,  though  irregular,  was 
not  void.  Where  the  justice  has  no  jurisdiction,  a  judgment  rendered  by  him 
may  be  attacked  collaterally,  want  of  jurisdiction  in  the  court  may  be  shown, 
though  if  jurisdiction  be  conceded,  the  judgment  cannot  be  inquired  into.  In 
this  case,  the  justice  had  jurisdiction  of  the  cause,  of  the  parties,  and  of  the 
question  of  adjournment.  His  error  was  an  error  of  judgment,  and  according 
to  the  decisions  above  referred  to,  the  consequence  of  that  error,  was,  that  the 
cause  was  discontinued  as  between  the  parties,  and  any  judgment  entered  after 
such  adjournment,  was  liable  to  be  reversed.  Bat  I  believe,  that  none  of  the  cases 
consider  such  a  judgment,  a  proper  subject  of  inquiry  as  to  its  merits  in  another, 
tribunal.  If  the  justice  is  liable  in  this  case,  it  must  be  conceded  that  such 
liability  arises  from  a  judicial  act,  which  is  contrary  to  established  principles." 

t  In  Henly  v.  Broad,  1  Leon.  41,  Henly  brought  trespass  against  Broad,  and 
declared  that  he,  together  with  a  certain  J.  S.,  broke  the  plaintiff's  close.  The 
defendant  pleaded  to  issue,  and  it  was  found  for  the  plaintiff.  It  was  objected 
in  arrest  of  judgment,  that  the  count  was  not  good,  because  it  appeared  from 
the  plaintiff's  own  showing  that  the  action  ought  to  have  been  brought  against 
another  not  made  a  party  defendant.  Judgment  was,  however,  given  for  the 
plaintiff,  and  upon  a  writ  of  error  to  the  Exchequer  Chamber,  it  was  affirmed  on 
the  principle  that  it  was  cured  after  verdict  by  the  statute  of  jeofails.     The 


62  TRESPASS    AS  A  REMEDY.  §  Gl. 

K  the  action  be  joint,  there  can  be  no  separate  estimate  of  the 
injury  committed  by  each;^  but  a  general  verdict  for  the 
plaintiff  will  apply  to  all  of  the  defendants.^  Actions  may, 
however,  be  depending  against  each  trespasser  severally  at 
the  same  time,  for  the  trespass  committed  by  them  jointly; 
and  the  pendency  of  one  is  not  pleadable  in  abatement  of  the 
other.^  Neither  is  a  recovery  against  one  a  bar  to  an  action 
against  his  cotrespasser,^  though  the  plaintiff  can  have  but 
one  satisfaction.^'^ 

ground  of  this  decision  was  that  a  trespass  is  in  its  nature  the  separate  act  of 
each  individual,  and  that,  therefore,  the  pUiintifE  has  his  election  to  sue  all  or 
any  number  of  the  parties.  Serjeant  Williams  (1  Saund.  291),  in  his  notes,  after 
speaking  of  the  case  of  Henly  v.  Broad,  and  several  other  cases  which  recognize 
the  principle  that  if  the  plaintiff  show  that  the  tort  was  done  jointly  by  the  de- 
fendant and  another,  the  suit  shall  abate,  says  that  there  is  no  ground  for  the 
distinction,  and  that  it  was  always  held  that  if  the  declaration  only  stated  that 
the  defendant,  together  with  certain  persons  unknown,  did  the  wrong,  the  action 
should  not  abate. 

In  Rose  v.  Oliver,  2  Johns.  365,  a  motion  was  made  in  arrest  of  judgment 
because  one  Russell  had  been  returned  not  found  on  the  capias,  and  was  com- 
plained of,  together  with  the  other  two  defendants,  as  having  committed  the 
trespass.  The  plea  was  put  in  by  the  two  defendants  returned  taken,  and  the 
verdict  found  them  guilty  of  the  trespass  alleged.  It  was  contended  that  the 
plaintiff  could  not  have  judgment  against  them,  as  it  appeared  by  his  own  show- 
ing that  Russell,  whom  he  had  made  a  defendant,  had  not  been  brought  into 
court  or  answered.  It  was  held  that  the  trespass  being  joint  or  several,  the 
plaintiff  was  at  liberty  to  proceed  against  one  or  more  of  the  defendants,  and 
that  the  declaration,  though  informal,  was  cured  by  the  verdict.  Spencer,  J., 
in  delivering  the  opinion  of  the  court  denying  the  motion,  said:  "The  method 
of  declaring  was  probably  adopted  under  the  notion  that  the  statute  authorizing 
proceedings  against  such  joint  debtors  as  were  returned  taken  extended  to  this 
case ;  an  idea  certainly  very  inaccurate.  The  effect  of  this  mode  of  declaring  we 
conceive  to  be  the  same  as  complaining  that  A.  and  B.  did  a  trespass  simul  cum 
quodamC.  D. ;  because  in  neither  case  is  the  person  not  taken  a  party  to  the  suit. 
There  is  no  reason  why,  contrary  to  the  established  principle  that  trespassers 
are  joint  or  several  at  the  election  of  the  injured  party,  the  plaintiff"  should  be 
obliged  to  make  all  the  trespassers  parties,  even  if  he  know  them.  It  can  pro- 
duce no  injury  to  the  defendant,  because  on  the  trial  there  would  be  no  e^^dence 
of  the  separate  and  distinct  acts  of  the  trespassers.  As  to  the  idea  that  a  con- 
tribution could  be  enforced,  and  that,  therefore,  all  known  to  the  plaintiff  shquld 
be  made  parties,  it  is  enough  to  say  that  this  is  not  a  case  of  contribution ;  and 
if  all  the  damages  were  levied  on  one  of  the  two  defendants  found  guilty,  he 
would  be  remediless." 

'  Gilpatrick  v.  Hunter,  24  Maine,  18;  Brown  v.  Allen,  4  Esp.  R.  158;  Wynne 
V.  Anderson,  3  C.  &  P.  596 ;  but  see  Johnson  v.  Hannahan,  3  Strobh.  435. 

^  Cane  v.  Watson,  1  Morris,  52. 

'  Sheldon  v.  Kibbe,  3  Conn.  214 ;  Jones  v.  Lowell,  35  Maine,  538. 

*  Marsh  v.  Berry,  7  Cowen,  344;  Sheldon  v.  Kibbe,  3  Conn.  214;  Day  v. 
Porter,  2  M.  &  Rob.  151 ;  Knott  v.  Cunningham,  2  Sneed  Tenn.  R.  204. 

"  Wright  v.  Lathrop,  2  Ham.  33;  Hawkins  v.  Hatton,  1  N.  &  M.  318;  Mc- 
Gehee  v.  Shafer,  15  Texas,  198;  Page  v.  Freeman,  19  Mo.  421. 

*  Until  the  case  of  Brown  v.   Wooton,  Cro.  Jac.  73,  the  law  seems  to  have 


§  G2.         ACTION  IN  THE  CASE  OF  JOINT  WRONG-DOEKS.  G3 

§  02.  In  order  to  render  one  man  liable  in  tresj^ass  for 
the  acts  of  others,  it  must  appear  either  that  they  acted  in 
concert,  or  that  the  act  of  the  individual  sought  to  be  charged, 
ordinarily  and  naturally  produced  the  acts  of  the  others.^  * 

been  well  settled,  and  required  satisfaction  as  a  bar  in  trespass.  In  Brooke's 
Abr.  tit.  Judgment,  pi.  98,  it  is  stated  that  if  two  commit  a  trespass  the  injured 
party  may  sue  them  separately ;  and  one  defendant  cannot  plead  that  the  plaintiff 
has  obtained  judgment  against  the  other  for  the  same  trespass  and  taken  him  in 
execution.  In  Morton's  Case,  Cro.  Eliz.  30,  it  was  determined  that  a  judgment 
and  execution  against  one  joint  trespasser  which  had  been  satisfied,  was  a  bar  to 
a  suit  against  a  cotrespasser ;  although  this  was  questioned  by  one  of  the  judges. 
In  the  same  year,  and  in  the  same  court,  the  case  of  Lendall  and  Pinfold,  1  Leon. 
19,  was  decided.  The  plaintiflf  brought  an  action  of  trespass,  "  and  had  judg- 
ment and  execution  accordingly."  Afterwards  he  brought  an  action  for  the 
same  trespass  against  a  cotrespasser,  and  the  judgment  and  execution  were  con- 
sidered a  good  bar.  This  case,  unless  by  the  phrase  "had  execution,"  is  meant 
that  the  plaintiff  had  the  effect  of  execution,  is  not  reconcilable  with  the  deter- 
mination in  Morton's  Case,  nor  with  Hitchcock  and  Thurland's  Case,  3  Leon. 
123,  decided  in  the  same  court  the  succeeding  year.  In  the  latter  case,  which 
was  an  action  of  trespass,  the  defendant  pleaded  that  the  plaintiff  had  obtained 
judgment  against  J.  S.,  a  cotrespasser,  "and  had  execution  of  damages."  The 
court  held  the  plea  good.  Plowden  said,  "it  was  a  good  bar,  for  that  all  is  but 
one  trespass ;  and  satisfaction  by  one  of  the  trespassers  is  satisfaction  for  the 
other.  And  if  the  plaintiff  had  released  to  the  other  trespassers,  the  defendant, 
if  he  had  it  in  his  hand,  might  well  plead  it."  The  case  of  Brown  v.  Wooton, 
Cro.  Jac.  73,  which  was  an  action  of  trover,  introduced  a  new  principle,  and  de- 
cided that  a  judgment  and  execution  in  behalf  of  a  person  concerned  in  the  same 
trespass  were  a  bar.  The  ground  of  the  determination  was,  "  that  the  cause  of 
action  being  against  diverse,  for  which  damages  uncertain  are  recoverable,  and 
the  plaintiff'  having  judgment  against  one  person  for  damages  certain,  that  which 
was  uncertain  before  is  rendered  in  rem  judicatam  and  to  certainty,  which  takes 
away  the  action  against  the  others."  Some  decisions,  since  the  case  just  men- 
tioned, have  followed  it  as  a  precedent,  and  particularly  Wilkes  v.  Jackson,  3 
Hen.  &  Munf.  355.  But  many  cases  have  considered  satisfaction  as  requisite  to 
bar  a  separate  suit.  That  a  judgment  alone  is  not  a  defense  was  adjudged  in 
Livingston  v.  Bishop,  1  Johns.  290;  and  in  Thomas  v.  Rumsey,  6  Johns.  26,  it 
was  thought  necessary  to  plead  judgment  with  satisfaction,  and  on  this  latter 
ground  the  plea  was  held  sufiicient.  In  Bird  v.  Randall,  3  Burr.  1345,  Lord 
Mansfield,  speaking  of  joint  trespassers,  remarks  that  the  plaintiff  may  proceed 
against  all  or  any  of  them,  "  yet  he  shall  have  but  one  satisfaction  for  the  same- 
injury." 

If  two  actions  are  brought,  and  both  go  into  judgment,  and  satisfaction  is 
obtained  in  one,  although  there  can  be  no  extinguishment  of  the  cause  of  action 
in  the  other,  because  it  is  merged  in  the  judgment,  the  court,  exercising  its 
"  sense  of  equity,"  will  stay  execution  against  the  damages  if  it  has  not  issued, 
remand  it  if  it  has,  and  has  not  been  served,  or  grant  relief  by  audita  querela, 
which  is  in  the  nature  of  a  bill  in  equity,  if  it  has,  but  permit  execution  for  the 
costs  (Knickerbacker  V.  Colver,  8  Cowen,  111). 

'  Guille  V.  Swan,  19  Johns.  381;  Brooks  v.  Ashburn,  9  Geo.  297;  Whitaker 
V.  English,  1  Bay,  15;  Chanet  v.  Parker,  1  Rep.  Con.  Ct.  333;  Johnson  v. 
Thompson,  1  Bald.  571;  Ously  v.  Hardin,  23  111.  403;  Hamilton  v.  Fulton,  28 
Mo.  359;  Storer  v.  Hobbs,  52  Maine,  144;  Eddy  v.  Howard,  23  Iowa,  175. 

*  In  Langdon  v.  Bruce,  27  Vt.  G57,  which  was  an  action  of  trespass  for  cut- 
ting timljcr,  it  appeared  that  the  defendant  and  one  Watts  bought  a  lot  adjoin- 
ing the  land  of  the  plaintiff.  Watts  to  have  the  timber,  and  the  defendant  the 
land.     There  was  a  dispute  as  to  the  true  division  line,  of  which  the  defendant 


64  TRESPASS   AS  A  REMEDY.  §  62. 

It  was  accordingly  lield  that  an  action  of  trespass  for  forcibly 
entering  a  house  and  turning  the  person  in  possession  out, 
could  not  be  maintained  against  a  military  surgeon  who 
simply  made  a  requisition  on  the  commandant  of  a  post  for 
a  proper  building  for  a  hospital,  and  pointed  out  the  house  in 
question ;  it  not  being  proved  that  the  surgeon  personally 
participated  in,  aided,  or  incited  the  forcible  dispossession.^  In 
an  action  of  trespass  against  several,  on  account  of  injury  done 
to  the  plaintiff  by  a  ball  thrown  by  one  of  the  players  at 
wicket,  the  judge  laid  down  the  following  as  essential  in 
order  to  convict  the  defendants  as  joint  trespassers:  1st.  It 
must  be  shown  that  the  parties  were  engaged  in  the  common 
pursuit  of  a  game  at  wicket  on  the  public  highway.  2d. 
That  the  game  was  of  such  a  character  that,  from  the  width 
of  the  road,  and  the  number  of  persons  usually  passing  there- 
on, it  would  endanger  those  traveling  on  the  public  high- 


knew  ;  but  he  supposed  and  claimed  that  the  judgment  in  an  action  of  trespass 
in  favor  of  the  former  owner  of  the  lot  purchased  by  him  and  Watts,  determined 
the  question  of  title  in  their  favor,  and  he  so  told  Watts,  vpho  cut  the  timber  on 
a  strip  of  land  which  was  ultimately  decided  to  belong  to  the  plaintiff.  The 
defendant  had  nothing  to  do  with  tlie  cutting  of  the  timber,  except  that  he  let 
one  of  his  hired  men  assist  Watts,  and  charged  Watts  therefor.  The  only  ques- 
tion presented  at  the  trial  in  the  county  court  was  in  regard  to  the  defendant's 
participation  in  the  taking  of  the  timber  by  Watts.  The  Supreme  Court,  in 
affirming  the  judgment,  which  was  for  the  defendant,  said  :  "We  think  it 
could  scarcely  be  claimed  that  the  defendant's  letting  his  hired  man  to  Watts  to 
assist  in  cutting  the  timber,  could  be  regarded  as  any  participation  in  the  act  of 
Watts  in  cutting  the  timber  off  from  any  other  than  the  lot  owned  by  him  and 
defendant.  Nor  should  we  regard  the  division  of  the  lot  in  the  manner  stated, 
even  with  the  belief  that  the  timber  in  question  was  on  the  defendant  and  Watts' 
lot,  as  any  participation  of  defendant  in  the  taking  of  this  timl)er,  unless  the 
defendant  did  something,  or  said  something  which  was  intended  to  induce 
Watts  to  cut  this  timber,  and  which  had  that  eti'ect,  or  unless  he  was  in  some 
■way  benefited  by  the  timber  being  cut.  But  nothing  of  this  kind  is  found.  If 
it  appeared  affirmatively  that  the  division  was  made  upon  the  basis  of  this  tim- 
ber forming  a  portion  of  the  joint  property  in  any  such  manner  as  to  leave  de- 
fendant liable  to  make  up  the  loss  to  Watts,  the  defendant  must  undoubtedly  be 
held  liable.  But  so  far  from  this  appearing,  it  would  rather  seem  that  he  had  no 
interest  whatever  in  that  question,  but  that  Watts  took  the  risk  of  where  the 
lines  of  the  lot  were,  as  to  the  timber,  and  the  defendant  as  to  the  land.  And 
nothing  appears  in  the  case  to  show  that  the  defendant  took  any  part  whatever 
in  determining  Watts  where  to  cut  timber,  more  than  by  ex|)ressing  an  opinion 
in  regard  to  the  effect  of  the  former  decision  in  settling  the  boundaries  of  the 
dividing  line  of  the  two  lots.  And  having  no  interest  in  the  question,  so  far  as 
the  timber  was  concerned,  we  do  not  see  why  it  should  involve  him  in  the  act 
of  Watts  in  cutting  the  timber  any  more  than  it  would  had  he  had  no  interest  in 
the  land." 

'  Mclutyre  v.  Green,  36  Geo.  R.  48. 


§  62.         ACTION    IN  THE   CASE   OF   JOINT   WRONG-DOEKS.  65 

way ;  that  tlie  individual  who  threw  the  ball  should  have 
beeu  acting  in  the  usual  manner  of  persons  engaged  in  the 
game  of  wicket.  It  was  held,  that  as  these  instructions  re- 
quired that  the  plaintiff  should  satisfy  the  jury  that  the  de- 
fendants had  entered  upon  a  common  pursuit  of  a  dangerous 
tendency,  which  might  result  in  an  •  injury  to  one  using  the 
highway  for  the  ordinary  purpose  of  travel,  they  comprised 
all  the  elements  necessary  to  constitute  a  joint  liability  and 
to  render  all  engaged  joint  trespassers.^  Williams  v.  Shel- 
don,^ was  an  action  of  trespass  against  a  number  of  persons 
for  entering  npon  the  plaintiff's  land,  and  cutting  and  carry- 
ing away  logs  and  shingles.  It  appeared  that  all  the  defend- 
ants were  seen  npon  the  lot  engaged  in  cutting  and  carrying 
away  timber  at  different  times ;  but  Avhether  they  were 
jointly  concerned  or  not  was  a  matter  of  inference.  They 
used  one  common  road,  made  expressly  for  the  purpose  of 
gettirfg  timber  from  the  lot,  and  also  had  a  common  shed  or 
temporary  house  to  which  all  their  logs  were  drawn,  for  the 
purpose  of  being  loaded  on  their  sleighs,  and  where  their 
shingles  were  made,  and  where  they  occasionally  slept.  The 
circuit  judge  instructed  the  jury  that  to  entitle  the  plaintiff 
to  a  verdict  against  all  the  defendants  as  joint  trespassers,  it 
must  appear  that  they  acted  in  concert  in  committing  the 
trespass  complained  of;  that  if  some  aided  and  assisted  the 
others  in  the  trespass,  all  were  equally  guilty;  or  if  some 
employed  the  others  to  commit  the  trespass,  or  assented  to 
the  trespass  committed  by  the  others,  having  an  interest 
therein,  they  were  all  jointly  guilty.  And  in  commenting 
npon  the  evidence  to  the  jury,  he  again  observed  that  they 
must  be  convinced  from  the  evidence  that  all  the  defendants 
were  acting  in  concert  in  the  trespass  in  question,  or  they 
could  not  all  be  found  guilty ;  but  that  it  would  not  be 
material  if  they  had  unequal  interests  in  the  avails  of  the 
trespass,  for  that  those  who  confederated  to  do  an  unlawful 
act  were  deemed  guilty  of  the  whole,  although  their  share  in 

'  Vosburgh  v.  Moak,  1  Cusb.  453.    ,  '  10  Wend.  654. 

Vol.  I.— 5 


60  TRESPASS    AS   A   REMEDY.  §  62. 

tlie  profit  might  be  small.  That  if  any  of  the  defendants 
were  not  guilty  at  all,  or  if  any  of  them,  though  guilty,  were 
acting  separately  and  for  themselves  alone,  without  any  con- 
cert with  the  others,  they  ought  to  be  acquitted,  and  those 
only  found  guilty  who  were  acting  jointly.  The  Supreme 
Coui-t  held  that  the  foregoing  was  a  correct  exposition  of  the 
law.*  AVhere  a  contractor,  acting  under  instructions  from 
the  owner  of  a  lot,  encroached  on  the  wall  of  the  adjoining 
proprietor,  by  erecting  a  building  six  inches  wider  than  the 
lot,  it  was  held  that  the  owner  was  a  tjotrespasser  with  the 
contractor.^  A.  authorized  B.,  a  brokerj  to  distrain  for  rent 
due  to  him  from  C.  B.  having  entered  for  the  purpose  of 
executing  the  warrant,  took  away,  among  other  things,  cer- 
tain books  and  papers  (which  were  assumed  not  to  be  distrain- 
able),  and  omitted  to  insert  them  in  the  inventory.  It  was 
held  that  A.  was  jointly  liable  with  B.^  Where  A.  and  B. 
were  riding  in  a  wagon  on  a  turnpike  road,  and  B.  jumped 
out,  and  having  shot  a  hare  in  an  adjoining  field,  brought  it 
to  A.,  who  remained  in  tlie  wagon,  the  latter  was  held 
guilty  of  the  trespass.^  f 

'  Williamson  v.  Fischer,  50  Mo.  198. 

'  Gaimtlett  v.  King,  3  J.  Scott.  N.  S.  59. 

=  Stacey  v.  Wbitelnirst,  18  C.  B.  N.  S.  344. 

*  Where  several  jointly  hire  a  carriage,  horses,  and  driver,  with  the  under- 
standing that  the  horses  shall  be  in  the  exclusive  charge  of  the  driver,  and  one 
of  the  hirers  causes  an  injury  to  the  horses  and  carriage,  each  of  the  hirers  is 
liable  for  the  damage.  O'Brien  v.  Bround,  2  Speers,  495.  And  if  the  owner  of 
a  carriage  having  loaned  it  to  two  persons,  rides  with  them,  the  three  will  be 
liable  for  injury  done  to  another  carriage  by  reckless  driving.  Bishop  v.  Ely,  9 
Johns.  294,  was  an  action  against  Ely  and  two  others  for  violently  driving 
against  the  horse  of  the  plaintiff  on  the  highway,  whereby  the  plaintiff's  horse 
was  killed.  It  appeared  that  Ely  lent  the  other  two  his  wagon,  and  that  having 
put  their  own  horses  to  it,  they  invited  Ely  to  ride  with  them,  which  he  was 
doing  when  the  accident  occurred.  It  did  not  appear  that  Ely  disapproved  of 
the  violent  manner  in  which  the  team  was  driven,  or  expressed  any  regret  at  the 
occurrence,  either  at  the  time  of  it  or  afterwards.  Held,  that  the  evidence  was 
sufficient  to  charge  all  the  three  defendants  with  a  joint  trespass. 

t  "Lord  Coke  in  4  Inst.  317,  states  as  a  difference  between  the  forest  law  and 
the  common  law,  that  by  the  former,  whosoever  receives  within  the  forest  any  male- 
factor in  hunting  or  killing  the  king's  deer,  knowing  him  to  be  such  malefactor, 
or  any  flesh  of  the  king's  venison,  knowing  it  to  be  the  king's,  is  a  principal  tres- 
passer. Whereas,  by  the  common  law,  he  that  receiveth  a  trespasser,  and  agreeth 
to  a  trespass  after  it  be  done,  is  no  trespasser,  unless  the  trespass  was  done  to  his 
use,  or  for  his  benefit ;  and  then  his  agreement  subsequent  amounted  to  a  com- 
mandment, for  in  that  case,  omnis  7'atihabitio  retrotrahitur  et  mandato  equiparatur. 


§  63.         ACTION   IN  THE   CASE   OF  JOINT   WRONG-DOERS.  67 

§  63.  It  is  not  accurate  to  say,  that  all  those  present  at 
the  commission  of  a  trespass  are  liable  as  principals  who 
make  no  opposition  or  manifest  no  disapprobation  of  the 
wrongful  invasion  of  another's  person  or  property.  Tlie 
true  rule  on  that  point  is  this :  Any  person  who  is  present 
at  the  commission  of  a  trespass,  encouraging  or  inciting  the 
same,  by  words,  gestures,  looks,  or  signs,  or  who  in  any  way, 
or  by  any  means,  countenances  or  approves  the  same,  is  in 
law  deemed  to  be  an  aider  and  abettor,  and  liable  as  prin- 
cipal ;  and  proof  that  a  person  is  present  at  the  commission 
of  a  trespass,  without  disapproving  or  opposing  it,  is  evi- 
dence from  which,  in  connection  with  other  circumstances, 
it  is  competent  for  the  jury  to  infer  that  he  assented  there- 
to, lent  to  it  his  countenance  and  approval,  and  was  thereby 
aiding  and  abetting  it.^  But  if  he  is  only  a  spectator,  inno- 
cent of  any  unlawful  intent,  and  does  no  act  to  countenance 
or  approve  those  who  are  actors,  he  is  not  to  be  held  lia1)le 
on  the  ground  that  he  happened  to  be  a  looker  on,  and  did 
not  use  active  endeavors  to  prevent  the  commission  of  the 
unlawful  acts.^  *     If  A.  give  B.  leave  to  go  into  a  field  in 

By  the  law  of  the  forest,  such  a  receiver  is  a  principal  trespasser,  though  the 
trespass  was  not  done  to  his  use  "  (quoted  by  Parke,  J.,  in  Wilson  v.  Barker,  4 
Barn.  &  Adolph.  614). 

Where  several  are  engaged  in  a  lawful  act,  and  one  of  them  commits  a  tres- 
pass in  aid  of  their  common  purpose,  the  others  not  directing  or  countenancing 
him  therein,  they  are  not  liable  therefor  (Richardson  v.  Emerson,  3  Wis.  319). 

Where  the  owner  of  land  engages  another  to  make  an  unlawful  encroachment 
on  the  street  in  front  of  sucii  land,  the  parties  are  jointly  liable  (Clark  v.  Fry, 
8  Ohio,  N.  S.  358). 

A  person  cannot  maintain  trespass  against  his  cotrespasser  (Doolittle  v.  Lins- 
ley,  2  Aik.  155;  Tubbs  v.  Lynch,  4  Harring,  521).  Neither  can  contribution  be 
claimed  as  between  joint  wrong-doers  (Meriywether  v.  NLsan,  8  Term  R.  186; 
Farebrother  v.  Ansley,  1  Camp.  343;  but  see  Bell  v.  Walsh,  7  Cal.  84,  contra). 

Where  two  persons  are  sued,  and  one  of  them,  without  the  knowledge  of  the 
other,  confesses  judgment  as  well  for  his  codefendant  as  for  himself,  and  the 
property  of  the  codefendant  is  taken  and  sold  under  an  execution  issued  upon 
such  judgment,  and  an  action  of  trespass  is  brought  by  him  therefor  against  the 
first  named,  the  judgment  is  a  justification  without  proof  of  authority  to  confess 
it  (Ingails  V.  Sprague,  10  Wend.  672). 

'  McManus  v.  Lee,  43  Mo.  206. 

=  Hale's,  P.  C.  459;  Roscoe's  Cr.  Ev.  2d  ed.  201;  Brown  v.  Perkins,  1 
Allen,  89. 

*  Brown  v.  Perkins,  supra.,  was  an  action  for  breaking  and  entering  the 
plainti9''s  grocery  and  destroying  various  articles.  At  the  trial  in  the  Superior 
Court,  the  evidence  tended  to  show  that  by  a  concerted  action  or  cous2)iracy, 


C8  TKESPASS    AS    A  REMEDY.  §§  64,  65. 

wliicli  A.  has  no  right,  and  B.  goes  there,  this  will  not  make 
A.  liable  as  a  cotrespasser  with  B.  But  if  A.  order  and 
authorize  B.  to  go  into  the  field,  and  he  does  so,  A.  is  a  joint 
trespasser  with  B. ; — the  latter  constituting  an  authority^ 
the  former  leave  and  license  only.^ 

§  64.  If  two  men  having  separate  servants,  separately 
send  them  to  do  one  and  the  same  thing,  and  they  in  doing 
it  occasion  an  injury  to  any  one  for  which  their  masters  would 
be  responsible,  they  will  be  jointly  liable  by  reason  of  their 
sending  their  servants  to  act  jointly.  But  they  would  not 
be  liable,  either  jointly  or  severally,  for  trespasses  done  by 
their  servants  when  not  in  their  masters'  business.  Nor 
would  they  be  jointly  liable  if  the  servants  had  been  sent 
each  to  do  his  master's  separate  business.^ 

12.  Settlement  of  claim  for  damages. 

§  65.  The  following  are  established  propositions  in  rela- 
tion to  the  settlement  of  a  claim  for  damages:  1st.  K  A.  and 

many  persons  assembled  wilh  the  design  to  commit  unlawful  acts  by  trespassing 
on  the  premises  and  destroying  the  property  of  others  whom  they  supposed  to  be 
engaged  in  an  unlawful  and  obnoxious  traffic;  and  tliat  in  pursuance  of  this 
common  design,  they  broke  and  entered  the  shop  of  the  plaintiff,  and  there 
injured  and  destroyed  various  articles  of  personal  property.  It  also  appeared 
that  both  of  the  defendants  were  present  during  the  perp3tration  of  these 
unlawful  apts  on  the  premises  of  the  plaintiff;  and  tiiere  was  evidence  which 
tended  to  prove  that  both-of  them,  if  tiiey  did  not  actively  participate  in  the 
unlawful  acts,  were  nevertheless  there  in  pursuance  of  the  common  design,  and 
"were  sympathizing  with  and  giving  countenance  to  those  who  were  engaged  in 
the  work  of  destroying  the  plaintiff's  property.  Upon  this  point  however  the 
evidence  was  contradictory;  the  defendants  contending  that  they  were  there 
as  spectators  only,  innocent  of  any  combination  or  conspiracy,  and  in  no  way 
participating  in,  or  encouraging  the  unlawful  acts  of  others.  The  effect  of  the 
instruction  given  to  the  jury,  was  to  lead  them  to  believe  that  the  defendants 
could  not  be  held  liable  as  principals  for  aiding  and  assisting  in  the  unlawful 
acts  by  countenancing  and  approving  the  measures  which  were  taken,  or  by 
making  no  'opposition,  or  manifesting  no  disapprobation  of  them,  unless  they 
stood  in  such  relation  as  would  naturally  enable  them  to  exercise  some  authority, 
control,  or  influence,  over  the  actors;  as  where  the  actors  are  wives  or  children, 
especially  daughters,  and  the  persons  present,  are  husbands  or  fathers  of  such 
actors.  The  Supreme  Court,  remarked,  that  "this  was  clearly  erroneous,  not 
only  because  it  annexed  a  limitation  or  qualification  to  the  rule  by  which  aiders 
and  abettors  are  held  to  be  principals,  which  does  not  exist,  but  also,  because 
it  omitted  to  meet  that  part  of  the  evidence  which  tended  to  show  that  both 
the  defendants  were  present,  giving  aid  and  assistance  to  the  actors  in  the  unlaw- 
ful enterprise,  towards  whom  they  stood  in  no  such  relation  as  was  contemplated 
in  the  instructions." 

'  Robinson  v.  Vaughton,  8  Car.  &  P.  252.  ""  Adams  v.  Hall,  2  Vt.  9. 


§  G5.  SETTLEMENT   OF   CLAIM  FOR  DAMAGES.  09 

B.  trespass  upon  C,  and  either  ^satisfies  the  damage  before  a 
suit  is  commenced,  the  cause  of  action  is  extinguished ;  and 
if  a  suit  be  afterward  brought  against  either,  that  satisfaction 
may  be  pleaded  in  bar ;  for  no  right  of  action  exists  at  the 
time  the  action  is  commenced.  If  a  release  be  given,  it  may 
be  pleaded  as  a  release  by  him  to  whom  it  is  given,  and  as  a 
satisfaction  by  the  other.  ^  2d.  If  an  action  be  brought 
against  one  before  satisfaction,  and  he  accord  and  satisfy  the 
damao-e,  that  extinsfuishes  the  cause  of  action  also,  and  if  a 
suit  be  afterward  brought  against  the  other,  the  satisfaction 
may  be  pleaded  in  bar.  ^  3d.  If  an  action  be  brought  against 
all,  and  one  pay  damages  and  costs,  and  the  action  be  dropped, 
no  action  can  afterward  be  brought  against  the  others.^  4th. 
If  an  action  be  brought  against  all,  and  pending  the  action 
one  accord  for  himself  only,  and  pay  the  damages  and  costs, 
it  is  a  discharge  of  the  action  as  to  all.*  In  Gilpatrick  v. 
Hunter,^  the  plaintiff  commenced  an  action  of  trespass  against 
the  defendants  and  one  Leonard  for  a  joint  trespass  committed 
by  them  upon  his  person  and  property.  He  afterward  re- 
ceived of  Leonard  five  dollars  "  in  full  of  said  Leonard's  tres- 
pass Avhere  he  and  Wilson  P.  Hunter  w^ere  in  company,  to- 
gether with  others ; "  and  it  was  held  that  this  operated  to 
discharge  the  other  joint  trespassers.  The  court  remarked 
that  the  difficulty  in  maintaining  the  suit  against  the  others 
was,  that  the  law  considered  that  the  one  who  had  paid  for 
the  injury  occasioned  by  him  and  had  been  discharged,  com- 
mitted the  whole  trespass,  and  occasioned  the  whole  injury, 
and  that  he  had  therefore  satisfied  the  plaintiff  for  the  whole. 
In  Ayer  v.  Ashmead,®  wbich  was  an  action  of  trespass  quare 
clausum  f  regit,  the  defense  was,  that  one  Grumley,  together 
with  the  defendant,  committed  the  trespass,  and  that  Grum- 
ley paid  to  the  plaintiff  the  damages  and  costs  in  full,  which 
were  accepted  by  the  plaintiff  as  a  satisfaction  for  the  tres- 

'  Brown  v.  Marsh,  7  Vt.  327.  "  Cocke  v.  Jeunor,  Hobart,  G6. 

'  2  Greenlf.  Ev.  §  30,  note;  1  Saund.  PI.  &  Ev.  29. 

*  Ellis  V.  Bitzer,  2  Ham.  89;  Frye  v.  Ilinkley,  18  Maine,  320. 

'  24  Maine,  18.  '  31  Conn.  447. 


70  TRESPASS    AS  A   REMEDY.  §  C5. 

pass.  The  plaintiff  resisted  this  position  on  the  ground  that 
he  instituted  two  actions  of  trespass,  one  against  the  present 
defendant  and  one  against  Grumley,  and  he  only  intended 
to  settle  the  Grumley  suit.  A  receipt  "  in  full  for  damages 
and  costs  in  a  case  of  trespass  by  said  Grumley  on  my  land," 
executed  by  the  plaintiff  to  Grumley  after  both  suits  had 
been  commenced  but  before  the  return  day  for  either,  was 
produced.  The  settlement  with  Grumley  was  not  intended 
to  include  the  present  action,  nor  w^as  the  sum  paid  under- 
stood to  be  paid  on  account  of  the  damages  claimed  of  the 
defendant,  or  of  the  costs  of  the  suit,  or  any  part  thereof;  and 
the  writing  was  not  given  or  received  for  tbe  purpose  of  dis- 
charging, or  in  any  way  affecting,  the  present  action,  or  the 
plaintiff's  right  of  recovery  therein,  but  for  the  sole  purpose 
of  discharging  Grumley  alane.  In  tlie  court  below,  the 
plaintiff  objected  to  the  admission  of  tlie  receipt  in  evidence, 
because  it  did  not  purport  to  release  the  defendant  or  relate 
to  the  present  action.  It  was,  however,  admitted.  The 
judge  charged  the  jury  that  although  they  should  find  a  joint 
trespass,  and  the  payment  by  Grumley  and  the  receipt  given 
therefor,  and  the  acceptance  thereof  in  satisfaction  of  the 
damages  claimed  of  Grumley,  and  the  costs  of  the  suit  against 
him,  and  tbat  the  receipt  wslb  given  upon  the  settlement  of 
that  suit  for  the  purpose  of  discharging  Grumley  from  said 
damages  and  costs  claimed  in  the  suit  against  him ;  yet,  if 
the  present  action  was  then  pending,  and  costs  bad  accrued 
tberein  and  w^ere  unpaid,  and  the  present  action  was  not  in- 
cluded nor  intended  to  be  included  in  sucb  settlement,  and 
nothing  had  been  paid  or  received  on  account  of  sucb  costs, 
tben  their  verdict  should  be  for  the  plaintiff  for  nominal 
damages  and  his  costs.  A  verdict  having  been  found  for  the 
2:)laintiff,  in  accordance  wdth  the  foregoing  instruction,  the 
Supreme  Court  granted  a  new  trial  for  error  in  the  charge.  * 

*  In  Ayer  v.  Ashmead,  supra,  Hinman,  C.  J.,  in  delivering  the  opinion,  re- 
marked that,  "if  it  were  said  that  it  was  inequitable  to  allow  a  satisfaction  to 
cover  the  costs  in  both  suits  wlien  such  was  not  the  intention,  the  answer  was, 
that  the  plaintiff"  was  not  obliged  to  acc(!pt  of  satisfaction  unless  he  secured  his 
costs."     Butler,  J.,  delivered  a  very  elaborate  dissenting  opinion,  in  the  course 


§66. 


SETTLEMENT   OF   CLAIM  FOR  DAMAGES.  71 


§  6Q.  A  settlement  with  some  of  several  joint  defendants 
will  be  deemed,  in  the  absence  of  proof  to  the  contrary,  a 


of  ■which,  he  said:  "I  concede  fully,  that  such  accord  by  a  defendant  in  one 
action  satisfies  and  extinguishes  the  cause  of  action  in  both.  Here  one  has  begn 
discontinued  pursuant  to  the  accord ;  the  other  is  pending,  and  what  shall  the 
court  do  with  it?  It  was  justifiably  commenced  for  a  good  cause  of  action,  and 
so  pursued  up  to  the  time  of  the  satisfaction  of  the  trespass,  and  the  extinguish- 
ment of  that  cause.  The  pUuntifl^  has  incurred  cost  in  the  lawful,  and  presump- 
tively in  the  necessary  pursuit  of  his  legal  rights  to  obtain  satisfaction  for  an  in- 
jury; for  as  to  the  necessity  of  instituting  and  prosecuting  this  action,  he  was 
and  must  be  held  to  have  been  the  judge.  Into  that  question  we  cannot  go. 
Having  then  lawfully  and  necessarily  incurred  those  costs,  is  he  to  lose  them? 
Nay,  more,  is  he  to  be  punished  for  such  necessary  exercise  of  his  lawful  rights 
by  an  appeal  to  a  higher  court,  the  pleading  of  the  general  issue,  to  make  the 
trial  more  expensive,  with  a  certain  judgment  against  him,  either  on  that  issue, 
or  on  a  plea  of  satisfaction,  and  a  consequent  certain  heavy  bill  of  costs?  Can  a 
court  permit  that,  without  divesting  itself  of  that  'sense  of  equity,'  which  must 
necessarily  be  its  guide  in  the  administration  of  the  law — that  '  soul  and  spirit,' 
by  which,  says  Blackstone,  '  positive  law  is  construed,  and  rational  law  is 
made? '  *  *  *  jn  thjg  case,  it  was  the  duty  of  the  defendant  to  pay  and  ten- 
der the  costs  in  this  action  up  to  the  time  when  the  cause  of  action  was  extin- 
guished, and  then,  if  the  plaintifi"  did  not  withdraw  the  action,  to  plead  the  sat- 
isfaction, and  aver  the  tender.  But  until  those  costs  were  paid,  it  was  in  the 
I^ower  of  the  court  to  refuse  or  overrule  his  plea  of  satisfaction,  and  render  judg- 
ment for  nominal  damages  and  costs.  *  *  *  n  has  been  urged  that  the 
plaintifE  voluntarily  accepted  satisfaction  for  the  trespass,  and  that  he  might 
then  have  insisted  on  the  costs  of  this  action.  But  that  cannot  help  the  defend- 
ant. The  plaintifi'  had  a  perfect  right  to  pursue  both  actions,  and  to  settle 
either.  He  could  not  enforce  the  collection  of  the  costs  of  this  suit  in  his  action 
against  Crumley,  and  therefore  he  waived  no  right,  and  lost  none.  It  was  op- 
tional with  him,  to  take  his  damage  before  judgment,  or  after  it  had  been  ascer- 
tained ou  a  default  and  hearing  in  damages,  or  by  verdict ;  and  voluntarily,  or 
by  force  of  an  execution.  It  was  entirely  immaterial,  when  or  how  he  got  it. 
All  that  the  defendant  had  any  interest  in,  was  the  consequent  satisfaction  for 
the  trespass;  and  all  the  interest  the  plaintiff  afterward  had  in  this  suit,  however 
that  satisfaction  was  obtained,  was  his  costs ;  and  that  interest  he  had  a  perfect 
right  to  retain  and  enforce  against  the  defendant  by  insisting  that  he  pay  the 
costs  before  he  pleaded  the  satisfaction,  or  sufi"er  a  verdict  for  nominal  damages." 
It  has  been  claimed  Ihat  there  is  a  substantial  analogy  between  a  joint  tres- 
pass, and  a  joint  and  several  promise,  in  respect  to  the  rights  and  liabilities  of 
the  parties  to  the  injury  by  the  trespass,  or  the  promise  in  the  contract.  The 
analogy  is  not  perfect.  A  wrong  committed  by  several,  is,  j^er  se,  several  in  its 
character,  and  only  joint  because  each  is  by  law  made  liable  for  the  acts  of  each 
and  all  done  in  furtherance  of  the  common  design.  The  tort,  therefore,  although 
several  in  its  nature,  is  "amalgamated."  But  a  promise  is  joint  and  several  in 
itself  and  in  terms,  .each  promising  for  himself,  and  jointly  with  the  others. 
Hence  a  promisee  in  a  contract,  may  sue  one  or  all;  but  a  party  trespassed  upon, 
may  sue  one,  all,  or  any  number.  So,  a  joint  and  several  debt  may  be  paid,  or 
the  contract  fullilled  by  one  or  for  all,  with  right  of  reimbursement,  or  contribu- 
tion, as  the  case  may  be.  But  a  trespass  can  only  be  satisfied,  or  the  cause  of 
action  directly  released  and  extinguished  without  right  of  contribution.  And 
in  case  of  several  judgments  in  trespass,  the  plaintiff  may  elect  de  meliorilus 
damnis ;  for  the  damages  may  be  greater  in  one  than  the  other.  But  no  such 
election  in  the  nature  of  things  can  be  had  in  case  of  several  judgments  for  the 
same  debt  or  other  certain  liability.  Still,  it  is  true  that  in  either  case,  the  right 
to  bring  separate  actions  against  each,  and  to  pursue  them  all  to  final  judgment 
and  execution,  or  until  a  satisfaction  is  obtained   for  the  debt  or  injury  from 


72  TRESPASS   AS    A  REMEDY.  §  C7. 

settlement  ^vith  all.  Accordingly,  where  in  an  action  for  au 
assault  and  battery  committed  by  the  defendants  and  James 
Bowen  and  Merrill  Bowen  jointly  upon  the  j^laintiff,  it  ap- 
peared that  after  the  trespass  was  committed,  and  before  the 
action  was  brought,  the  plaintiff  constituted  one  White,  his 
agent,  with  full  power  to  manage  and  control  any  right  of 
action  the  plaintiff  might  have  growing  out  of  the  assault, 
and  told  White  he  might  have  all  he  could  make  out  of  it ; 
and  that  afterward  White  settled  with  the  Boweus  for  the 
plaintiff's  claim  upon  them  for  damages  resulting  from  said 
trespass,  receiving  from  each  the  sum  of  $100,  and  giving 
each  a  writing  signed  by  him  to  indemnify  and  save  them 
harmless  from  all  their  liability  to  the  plaintiff  for  damages 
that  the  plaintiff'  sustained  by  reason  of  the  said  trespass, — 
it  was  held  that  in  the  absence  of  proof  that  the  foi-egoing 
was  not  a  settlement  in  full  of  all  damages,  it  would  operate 
as  a  discharge  of  all  the  parties  engaged  in  the  assault.^ 

§  67.  Where,  howev^er,  there  is  not  a  settlement  of  the 
cause  of  action,  but  merely  an  agreement  that  upon  the  pay- 
ment by  one  of  the  defendants  of  a  specified  sum  the 
plaintiff  will  not  prosecute  him  any  further,  it  will  only  re- 
duce the  damages  ])ro  tanto,  and  not  be  a  defense  to  a 
recovery  against  the  other  defendants.^  In  Snow  v.  Chand- 
ler,^ which  was  an  action  for  assault  and  battery,  the  defense 
was  that  the  trespass  was  committed  by  the  defendant  and 
one  Holt,  and  that  the  ])laintiff  had  settled  with  Holt  for  the 
sum  of  twenty  dollars.  It  appeared  that  the  arrangement 
between  the  plaintiff'  and  Holt  was,  that  there  should  be  a 

some  one  of  them,  is  the  same  in  one  case  as  the  other.  And  the  debt  in  one 
case,  or  tlie  damage  iu  the  other,  are  so  far  "a  unit  and  indivisible,"  that  every 
judgment  must  be  rendered  for  the  whole.  Nevertheless,  the  right  of  action 
against  each  is  perfect  in  itself.  A  release  of  one  copromisor  or  cotrespasser, 
or  a  discliarge  of  one  action  when  two  are  pending,  is  not  /jer  se  a  release  or  dis- 
charge of  the  right  of  action  against  the  other,  who  is  not  a  party  to  the  release 
or  discharge,  and  cannot  be  pleaded  as  such;  l)ut  it  inures  to  the  other  by  reason 
of  his  actual  jmvity  in  the  promise,  or  legal  privity  in  the  injury,  as  a  satisfac- 
tion, and  so  au  extinguishment  of  the  right  to  the  debt  or  damages  from  that 
time. 

'  Eastman  v.  Grant,  34  Vt.  387. 

""  Chamberlin  v.  Murphy,  41  Vt.  110.  ^  10  N.  Hamp.  93. 


§  68.  SETTLEMENT   OF   CLAIM   FOR  DAMAGES.  73 

settlement  so  far  as  that  the  latter  should  pay  the  twenty 
dollars,  and  in  case  the  plaintiff  should  choose  at  any  future 
time  to  prosecute  Holt,  he  should  be  at  liberty  to  do  so 
on  refunding  the  sum  so  paid,  the  plaintiff  at  the  same 
time  declaring  that  he  would  not  settle  with  the  other  de- 
fendant for  five  hundred  dollars.  It  was  held  that  the 
plaintiff  was  entitled  to  recover."^" 

§  68.  Although  the  princi23le  is  well  settled  that  a  release 

*  In  Chamberlin  v.  Murphy,  supra,  the  court  said :  ''  The  defendants  and  their 
cotrespassers  had  incurred  a  liability  in  its  nature  joint  and  several.  The 
plaintiffs  had  in  fact  but  one  cause  of  action,  but  they  were  at  liberty  to  pursue 
it  against  as  few,  or  as  many  of  the  cotrespassers  as  they  should  choose.  They 
might  sue  them  separately  or  together,  but  very  obviously  they  were  not  entitled 
to  more  than  one  full  satisfaction.  Tlie  first  piece  of  evidence  which  was  ex- 
cluded agaiust  objection  was  the  receipt  for  $65,  given  by  the  plaintiff's  attorney 
to  the  estate  of  Simonds,  one  of  the  cotrespassers.  This  receipt,  by  its  terms, 
shows  that  the  plaintiff's  damages  have  been  satisfied  to  the  extent  of  $65,  and 
the  defendants  had  the  right  to  insist  upon  its  application  to  reduce  tlie  plaintiff 's 
recovery  pro  tanto.  To  hold  otherwise  would  be  to  permit  the  plaintiffs  to  re- 
cover for  this  portion  of  the  damages  twice.  If  they  had  received  this  sum  in 
full  satisfaction  for  their  injury,  it  would  have  reduced  the  plaintiff 's  recovery 
to  a  nominal  sum;  but  they,  having  received  it  as  they  did,  not  in  settlement  of 
the  cause  of  action,  but  merely  agreeing  to  prosecute  this  trespasser  no  further, 
it  will  only  reduce  the  recovery  pro  tunto.  It  was  not  pleaded  in  bar  of  tlie  ac- 
tion; and,' if  it  had  been,  would,  under  all  the  authorities,  have  been  no  defense 
to  a  recovery"  (citing  Spencer  v.  Williams,  2  Vt.  211;  Eastman  v.  Grant,  34 
Vt.  389). 

In  Snow  V.  Chandler,  supm,  the  court  said:  "There  can  be  no  reason  why 
damages  for  a  wrong  done  should  be  more  easily  settled  and  canceled  than  a 
claim  for  a  debt  due,  or  that  the  law  should  favor  the  discharge  of  trespassers 
more  than  the  release  of  debtors.  The  principle  as  to  what  constitutes  the  re- 
lease of  a  contract  where  there  are  joint  debtors  applies  to  a  covenant  not  to  sue 
one  of  two  joint  trespassers,  for  the  reason  that  it  cannot  be  inferred  from  such  a 
covenant  that  it  was  the  intention  to  discharge  the  claim  of  damage.  The  sub- 
stance of  the  arrangement  betvv-ixt  the  plaintiff  and  Holt  seems  to  have  been  this: 
That  the  plaintiff  w"as  willing  to  receive  a  small  portion  of  the  damage  from  Holt, 
either  for  the  reason  that  he  conceived  him  to  be  less  to  blame  than  the  defend- 
ant, or  that  he  was  less  able  to  pay  his  proportion  of  the  damage;  and  on  con- 
dition of  receiving  this  sum  the  plaintiff  engaged  to  pursue  the  defendant  for  the 
remainder  of  his  claim.  It  is  clear  that  the  sum  paid  was  not  received  in  satis- 
faction of  the  damage,  but  only  in  part  satisfaction;  and  the  fact  that  it  was 
coupled  with  the  engagement  not  to  sue  Holt  does  not  alter  the  case.  It  is  still 
but  a  partial  satisfaction  of  the  damage,  and  the  plaintiff  may  sue  or  omit  to 
sue  whom  he  pleases,  by  contract  or  otherwise.  The  other  trespasser  has  no 
equitable  or  legal  claim  to  ])revent  such  an  arrangement.  He  remains  liable 
for  the  whole  damage  until  satisfaction  is  made.  If  the  individual  receiving 
the  injury  sees  fit  to  visit  the  penalty  upon  any  one  guilty  individual  ratlier 
than  another,  such  individual  has  no  right  to  complain.  It  is  part  of  the 
necessary  liability  that  he  incurs  in  committing  the  trespass,  and  should  serve 
to  deter  him  from  such  wrongful  acts.  At  the  same  time,  any  partial  pay- 
ment by  a  cotrcspasser  avails  so  far  for  his  benefit.  To  this  extent  the  de- 
fendant can  avail  liimself  of  the  plaintiff's  arrangement  with  his  cotrespasser, 
but  there  was  nothing  in  that  contract  which  constitutes  a  bar  to  this  suit." 


74  TRESPASS    AS  A  REMEDY.  §  69. 

of  one  of  two  or  more  joint  trespassers  is  a  release  of  all, 
yet  to  have  that  effect  it  must  be  a  technical  release,  that  is, 
by  an  instrument  under  seal.  The  reason  why  a  release  of 
one  discharges  all  is,  that  it  legally  imports  full  payment, 
and,  being  under  seal,  its  consideration  cannot  be  inquired 
into,  so  that  it  is  conclusive,  even  though  it  was  giv^en 
without  consideration  in  fact.  The  rule  is  the  same  whether 
the  claim  is  based  upon  a  tort  or  a  contract.-'  * 

§  69.  If  an  action  be  brought  against  one  of  several,  and 
judgment  had,  or  execution  taken  out  and  levied  on  the 
body,  and  that  is  discharged  by  taking  the  poor  debtor's 
oath,  it  will  not  be  a  satisfaction  of  the  trespass  or  affect 
the  right  to  bring  and  pursue  to  judgment  an  action  against 
the  other.^  But  where  separate  actions  are  brought  against 
joint  trespassers,  a  recovery  had  in  both  actions,  and  an  exe- 

'  Brown  v.  Marsh,  7  Vt.  320 ;  Eastman  v.  Grant,  34  Bx  387 ;  Brown  v.  Cam- 
bridge, 3  Allen,  474;  Stone  v.  Dickinson,  o  lb.  29;  Bloss  v.  Plymale,  3  AV.  Ya. 
393,  contra. 

^  Livingston  v.  Bishop,  1  Johns.  290;  Sheldon  v.  Kibbe,  3  Conn.  214,  over- 
ruling Brown  v.  Wooton,  Cro.  Jac.  73,  and  Yelv.  67. 

*  "  If  divers  commit  a  trespass,  though  this  be  joint  and  several  at  the 
election  of  him  to  whom  the  wrong  is  done,  yet  if  he  releases  to  one  of  them 
all  are  discharged,  because  his  own  deed  shall  be  taken  most  strongly  against 
himself.  Also  such  release  is  a  satisfaction  in  law,  which  is  equal  to  a  satis- 
faction in  fact.  But  he  who  would  take  advantage  of  such  a  release  must 
have  the  same  to  produce  "  (5  Bac.  Abr.  702). 

"If  two  men  doe  a  trespasse  to  another,  who  releases  to  them  all  actions 
personalis,  and  notwithstanding  such  an  action  of  trespasse  against  the  other, 
the  defendant  may  wel  show  that  the  trespasse  was  done  by  him  and  by 
another,  his  felloAv,  and  that  the  plaintife,  by  his  deed  (which  he  sheweth 
forth),  released  to  his  fellow,  all  actions  personalis,  and  demanded  the  judg- 
ment, »fcc.,  and  yet  sade  deed  belongeth  to  his  fellow  and  not  to  him.  But 
because  hee  may  have  advantage  by  the  deed,  if  hee  will  show  the  deed  to 
the  court,  hee  may  wel  plead  this  "  (Coke,  Lit.  232). 

Questions  in  relation  to  the  effect  of  the  discharge  of  one  upon  the  liability 
of  the  others,  have  generally  arisen  when  the  discbarge  has  been  given  upon 
the  payment  of  pait  of  a  demand,  or  some  consideration  less  than  a  full  pay- 
ment of  the  claim  against  the  one  discharged.  Such  was  the  case  of  Spencer 
V.  Williams,  2  Vt.  209,  and  Dean  v.  Newhall,  8  Term,  168.  The  first  case 
was  decided  on  the  ground  that,  as  the  discharge  was  not  under  seal,  it  did 
not  operate  as  a  release,  and  that  upon  its  face  it  was  not  a  full  discharge, 
but  only  an  agreement  not  to  sue.  In  the  other  case,  although  the  instru- 
ment was  under  seal,  it  was  held  not  to  be  a  release,  but  only  a  covenant 
not  to  sue,  which  all  the  authorities  agree  does  not  discharge  the  other  joint 
debtors. 

The  release  of  one  of  several  joint  trespassers  who  is  not  in  fact  liable, 
does  not  take  away  the  right  of  action  against  those  who  are  liable  (Turner 
V.  Hitchcock,  20  Iowa,  oio/. 


§  70.     PAETY  CONFINED  TO  REMEDY  GIVEN  BY  STATUTE.  75 

cution  issued  upon  one  of  the  judgments,  and  the  defendant 
in  the  execution  committed  to  jail  and  afterward  discharged 
therefrom  by  direction  of  the  plaintiff,  the  remedy  upon  both 
judgments  is  gone.^  '"'* 

13.    When  party  confined  to  remedy  given  hy  statute. 

§  70.  When  a  statute  confers  some  new  right,  and  pre- 
scribes a  remedy  for  a  violation  of  that  right,  then  the  rem- 
edy thus  prescribed,  and  no  other,  is  to  be  pursued.  But 
where  a  remedy  existed  at  common  la\^,  and  a  statute  creates 
a  new  remedy  in  the  affirmative,  without  a  negative  express 
or  necessarily  implied,  a  party  may  still  seek  his  remedy  at 
common  law.^  Coffin  v.  Field  ^  was  an  action  of  trespass  for 
taking;'  certain  animals  in  which  the  defendant,  as  field  driver 
of  the  town,  sought  to  justify  the  taking  on  the  ground  that 
the  animals  were  going  at  large  contrary  to  law.  A  chief 
ground  of  exception  to  the  ruling  of  the  court  below  was, 
that  the  only  remedy  for  a  party  whose  beasts  had  been 
iml awfully  distrained  and  impounded  by  a  field  driver  was- 
by  an  action  of  replevin.  The  objection  proceeded  upon  the 
idea,  that  as  the  remedy  by  replevin  was  given  in  such  cases 


'  Kasson  v.  The  People,  44  Barb.  347. 

'  Bac.  Abr.  Statute,  K;  1  Chitty's  Pi.  6th  Am.  ed.  127,  128,  164;  Golden  v. 
Eldred,  15  Johns.  220 ;  Wiley  v.  Yale,  1  Mete.  553 ;  Elder  v.  Bemis,  2  lb.  599. 

'  7  Gush.  3o5. 

*  In  Kasson  v.  The  People,  sup'a,  the  court  said:  "  If  the  judgment  had  been 
in  one  action  against  the  defendants  in  both  actions  for  the  same  trespass, 
and  one  only  had  been  charged  in  execution,  and  afterward  discharged  there- 
from, by  order  of  the  plaintiff  therein,  or  his  assignee,  the  effect  would  have  been 
tlie  same.  The  judgment  would  in  that  case  have  been  discharged,  and  no 
remedy  could  afterward  have  been  had  upon  it.  That  here  were  two  actions 
and  a  recovery  in  each  for  the  same  trespass,  does  not  vary  the  principle.  The 
discharge  by  the  plaintiff  of  the  defendant  from  imprisonment  on  an  execu- 
tion issued  against  him,  discharges  the  judgment  against  the  defendant  in  the 
other  judgment.  The  plaintiff  in  the  judgments  was  entitled  to  but  one  satis- 
faction for  the  injury  he  had  sustained  by  the  trespass  committed  by  the  de- 
fendants in  the  two  judgments,  and  that  he  has  had  by  the  imprisonment  of 
Gilbert  and  discharging  him  therefrom.  It  is  quite  true  that  originally  he 
had  the  right  to  imprison  the  relator  as  well  as  Gilbert,  to  satisfy  his  dam- 
ages, but  liaving  cliosen  to  charge  the  former  in  execution,  and  to  discharge 
him  from  imprisonment,  his  remedy  on  both  judgments  was  gone.  It  was 
equivalent,  in  the  eye  of  the  law,  to  payment  by  Gilbert  of  the  judgment 
against  him"  (citing  Chapman  v.  Ilatt,  11  Wend.  41;  Glark  v.  Glement,  6  Temi 
R.  525;  Livingston  v.  Bishop,  1  Johns.  289;  Bingham  on  Judg.  &  Ex.  206). 


76  TRESPASS    AS    A  REMEDY.  §  71. 

by  statute,  it  operated  to  exclude  the  remedy  at  common 
law.     But  it  was  held  that  tliis  was  not  true.* 

14,  Declaration. 

§  71.  The  principal  act  complained  of  should  be  clearly 
alleged  in  the  declaration,  separately  from  mere  matters  of 
aggravation,^  If  the  description  be  too  general,  a  special 
finding  w^ill  not  remedy  the  defect,^  "  It  seems  indeed  a 
universal  rule,"  says  Mr,  Starkie,^  "  that  a  plaintiff  or  prose- 
cutor shall  in  no  case  be  allowed  to  transscress  those  limits 
which  in  point  of  description,  limitation,  and  extent,  he  has 
prescribed  for  himself.  He  selects  his  own  terms  in  order 
to  express  the  nature  and  extent  of  his  charge  or  claim.  He 
cannot,  therefore,  justly  complain  that  he  is  limited  by  them." 
Where  there  is  no  positive  averment  of  a  trespass,  but  the 
trespass  is  laid  by  way  of  recital  only,  under  a  quod  cum,  it 
will  be  held  bad  on  demurrer.^  f 

'  Clark  V.  Langworthy,  13  Wis.  441. 

^  Frean  v,  Cruikshanks,  3  M'Cord,  84.  '  Tr.  on  Ev.  1531. 

^  Holbrook  v.  Pratt,  1  Mass.  96;  Coffin  v.  Coffin,  2  lb.  358;  Sturdevant  v. 
Gains,  5  Ala.  435. 

*  In  Elder  v.  Bemis,  supra,  the  charge  against  the  defendant  was,  that  he 
had,  within  the  limits  of  the  highway  and  without  the  approbation  of  the  select- 
men of  the  town  first  being  had  in  writing,  caused  two  watei'-courses,  occasioned 
by  the  wash  of  the  highway,  to  be  so  conveyed  by  the  side  of  the  highway  as  to 
incommode  the  plaintiff  in  the  use  of  his  barn,  and  thereby  obstructing  him  also 
in  the  prosecution  of  his  business.  It  was  held  that  the  plaintiff's  only  remedy 
was  that  given  by  the  statute.  By  section  five,  he  might  complain  to  the  select- 
men, who  were  authorized  to  authorize  the  water-courses;  and  by  section  six,  he 
was  entitled  to  compensation  for  any  damages  he  had  sustained  in  his  property, 
to  be  determined  by  the  selectmen ;  and  if  lie  should  be  aggrieved  by  such  deter- 
mination of  the  selectmen,  he  might  have  his  damages  ascertained  by  a  jury. 
That  but  for  this  statute,  the  defendant  would  have  had  a  right,  by  virtue  of  his 
office  of  surveyor,  to  make  any  repairs  and  alterations  in  the  highway  which  the 
public  convenience  required,  without  the  approbation  of  the  selectmen;  and  if 
the  plaintiff' were  incommoded  or  obstructed  in  his  business  thereby,  the  defend- 
ant would  not  be  responsible  for  damages.  And  that  for  the  violation  of  the 
prohibition  in  the  statute,  the  plaintiff"  was  only  entitled  to  the  statute  remedy 
(citing  Callender  v.  Marsh,  1  Pick.  418). 

t  One  trespass  well  alleged  is  sufficient  on  demurrer  (Chamberlain  v.  Green- 
field, 2  W.  Blk.  810;  3  Wils.  292). 

Even  where  distinct  causes  of  action  are  embraced  in  the  same  count,  pro- 
vided they  be  such  that  the  same  species  of  remedy  is  appropriate  to  them  all, 
although  it  may  constitute  duplicity  in  pleading,  and  in  that  respect  be  objec- 
tionable, yet,  if  the  defendant  does  not  take  advantage  of  the  objection  by 
special  demurrer,  he  waives  the  objection,  and  must  be  prepared  to  meet  all  the 
charges ;  and  if  the  plaintiff"  substantiates  any  of  them,  he  will  be  entitled  to  re- 


§§  72,  73.  DECLAEATION.  77 

§  72,  It  is  a  sufficient  description  of  the  place  of  the  al- 
leged trespass  to  name  and  prove  the  county/  If  the  tres- 
pass be  laid  in  a  town  which  previous  to  bringing  the  action 
is  subdivided,  it  may  be  alleged  to  have  been  done  in  the 
original  township  without  regard  to  its  subsequent  division.^ 

§  73.  The  declaration  need  not  state  the  actual  day  of 
the  injury,  if  it  be  proved  to  have  been  committed  before  the 
commencement  of  the  action.^  Where  the  acts  are  alleged 
to  have  been  committed  after  the  suing  out  of  the  writ,  the 
declaration  may  be  amended  by  fixing  them  prior  thereto.* 
Formerly,  every  declaration  in  trespass  seems  to  have  been 
confined  to  a  single  wrongful  act.  When  the  injury  was  of 
a  kind  that  could  be  continued  without  intermission  from 
time  to  time,  the  plaintiff  was  permitted  to  declare  with  a 
continuando^  and  the  whole  was  considered  as  one  trespass. 

cover.  In  order  to  apply  these  rules,  ami  to  distinguish  between  what  con- 
stitutes the  gist  of  the  action  of  trespass,  and  what  is  mere  matter  of  aggra- 
vation, it  is  only  necessary  to  ascertain  what  allegations  in  the  declaration  de- 
scribe a  substantive  ground  of  recovery  in  that  kind  of  action.  For  although 
the  declaration  may  contain  averments  descriptive  of  a  cause  of  action  of  an- 
other kind,  which  may  properly  be  introduced  and  proved  to  enhance  the  dam- 
ages, as  showing  the  aggravated  character  of  the  transaction,  yet  they  will  not 
be  deemed  to  be  any  part  of  the  gist  of  the  suit,  and  do  not  form  a  distinct  sub- 
stantive ground  of  damage  (Holly  v.  Brown,  14  Conn.  255). 

Comyn  in  his  Digest,  Action  G.,  states  .the  law  to  be,  that  an  action  on  a 
statute  cannot  be  joined  with  an  action  at  common  law.  He  cites  Jenkins,  115, 
as  his  authority;  and  Comyn  is  himself  an  authority,  and  among  the  highest, 
especially  on  a  question  of  [ileading.  The  rule  in  Comyn  may  not  be  of  universal 
application.  But  where  the  forfeiture  is  given  for  a  malicious  and  criminal  act, 
there  appear  to  be  very  strong  reasons  in  the  nature  of  the  case  for  holding  that 
the  action  on  the  statute  cannot  be  joined  with  a  claim  of  compensation  for  a 
mere  civil  injury.  The  cases  would  seem  to  show  that  the  struggle  of  the  courts 
has  been  hard,  and  by  no  means  entirely  successful,  to  fix  on  some  general  and 
uniform  rule  for  the  decision  of  these  questions  (Morrison  v.  Bedell,  2Fost.  234). 

In  Maine,  the  design  of  ch.  115,  §  la,  of  the  Rev.  Sts.,  in  providing  that 
'*  in  all  actions  of  trespass  and  trespass  on  the  case,  the  declaration  shall  be 
deemed  equally  good  and  valid,  to  all  intents  and  purposes,  whether  the  same 
shall  be  in  form  a  declaration  in  trespass,  or  trespass  on  the  case,"  was  to  abolish 
the  distinction  between  two  classes  of  cases  in  the  form  only  of  declaring  in  the 
writ;  so  that  proof  which  should  make  out  a  case  of  one  class,  should  not  fail  of 
effect  on  account  of  the  writ  being  appropriate  for  the  other  class.  But  in  cases 
where  the  distinction  is  really  of  substance,  the  provision  is  inapplicable  (Ten- 
ney,  J.,  in  Sawyer  v.  Goodwin,  34  Maine,  419). 

'  Jean  v.  Sandiford,  39  Ala.  317;  Shipier  v.  Iscnhower,  27  Ind.  36. 

"^  Renaudet  v.  Crocken,  1  Caines,  107. 

'  Caldwell  v.  Julien,  2  Rep.  Con.  Ct.  294 ;  but  see  Hubbert  v.  Collier,  6  Ala. 
2G9. 

■'  Ilainmatt  v.  Russ,  16  Maine,  171. 


78  TRESPASS    AS   A  REMEDY.  §  74. 

In  more  modern  times,  in  order  to  save  the  trouble  and  ex- 
pense of  a  distinct  writ,  or  count,  for  every  different  act,  the 
plaintiff  is  permitted  to  declare  for  a  trespass  on  divers  days 
and  times  between  one  day  and  another ;  and  in  that  case, 
he  may  give  evidence  of  any  number  of  trespasses  within  the 
time  specified.  Such  a  declaration  is  considered  as  if  it  con- 
tained a  distinct  count  for  every  different  trespass.  This  is 
for  the  benefit  of  the  plaintiff.  But  he  is  not  obliged  to  avail 
himself  of  the  privilege,  and  may  still  consider  his  declara- 
tion as  containing  one  count  only,  and  as  confined  to  a  single 
trespass.  When  it  is  considered  in  that  light,  the  time  be- 
comes immaterial,  and  he  may  prove  a  trespass  at  any  time 
before  the  commencement  of  the  action,  and  within  the  time 
prescribed  by  the  statute  of  limitations.^  * 

§  74.  Where  sjiecial  or  peculiar  damages  are  claimed, 
such  as  are  not  the  usual  or  natural  consequences  of  the  act 
done,  it  is  proper  to  set  them  forth  specifically  in  the  decla- 
ration, by  way  of  aggravation,  that  the  defendant  may  have 
due  notice  of  the  claim.^f     A  general  allegation  will  not 

'■  Pierce  v.  Pickens,  16  Mass.  470 ;  ^(^6^^  §§  96,  958. 

'  Dickinson  v.  Boyle,  17  Pick.  78. 

*  It  would  be  giving  an  undue  advantage  to  the  plaintiff  if  he  could  avail 
himself  of  the  declaration  in  both  of  the  modes  mentioned  in  the  text,  and 
would  frequently  operate  as  a  surprise  on  the  defendant.  He  is,  therefore,  bound 
to  make  his  election  before  he  begins  to  introduce  the  evidence.  In  Sedley  v. 
Sutherland,  3  Esp.  203,  Lord  Kenyon  said  that  where  an  action  is  brought  for  a 
joint  trespass,  and  the  plaintiff  elects  to  go  for  a  trespass  at  any  particular  time, 
he  must  confine  himself  to  that  period ;  and  if  all  the  defendants  were  not  con- 
cerned in  the  trespass  committed  at  that  time,  the  plaintiff  cannot  have  recourse 
to  a  trespass  committed  at  a  future  time,  when  some  of  the  defendants  were  con- 
cerned who  were  not  implicated  in  the  first  transaction;  and  he  says  the  reason 
is  this,  that  some  of  the  defendants  might  be  thereby  subjected  to  damages  for 
a  trespass  in  which  they  had  no  part  or  concern. 

It  is  too  late  to  object  to  the  declaration  after  a  plea  of  not  guilty  (James  v. 
Tait,  8  Port.  476).  But  the  party  may,  in  error,  insist  upon  the  insufficiency  of 
the  verdict  and  judgment  (Sturdevant  v.  Murrell,  8  Port.  317).  The  doctrine 
that  where  opportunity  is  given  for  objections,  and  none  are  made,  but  the  party 
whose  business  it  is  to  object  remains  silent,  all  reasonable  intendments  will 
be  made  by  a  court  of  error  to  uphold  the  judgment,  has  been  frequently  an- 
nounced by  the  courts  of  New  York  (see  Baldwin  v.  Calkins,  10  Wend.  167;, 
Menderback  v.  Hopkins,  8  Johns.  436;  Ford  v.  Monroe,  20  Wend.  210;  Oakley 
V.  Van  Horn,  21  Wend.  305;  Holbrook  v.  Wight,  24  Wend.  169). 

t  Notice  to  the  partv  is  an  indispensable  requisite,  founded  upon  principles 
of  natural  justice  (4  Blk.  Com.  280 ;  Chase  v.  Hathaway,  14  Mass.  222 ;  Colt  v. 
Eves,  12  Conn.  243). 


§§  75,  76.  DECLARATION.  79 

enable  the  plaintiff  to  prove  special  damages ;  that  is,  dam- 
ages which  the  law  does  not  imply  from  the  facts  alleged.^ 
Accordingly,  in  an  action  l)y  the  husband  for  obstructing  a 
right  of  way  leading  to  the  wife's  land  "  to  the  damage  of 
the  plaintiff'  in  the  sum  of  three  hundred  dollars,"  it  was 
held  that  loss  or  diminution  of  rent  was  not  an  element  of 
damages  which  the  jury  could  legally  take  into  considera- 
tion.^ And  where  the  j^laintiff  alleged  the  loss  of  divers 
lodgers,  without  naming  them,  it  was  held  that  he  could  not 
be  permitted  to  prove  the  loss  of  a  particular  lodger.^ 

§  Y5.  At  common  law,  in  actions  in  form  ex  delicto^  if  a 
party  who  ought  to  be  joined  as  plaintiff  be  omitted,  the  ob- 
jection can  only  be  taken  by  plea  in  abatement,  or  by  way  of 
apportionment  of  the  damages  on  the  trial ;  and  the  defend- 
ant cannot,  as  in  actions  in  form  ex  contractu^  give  in  evidence 
the  non-joinder  as  a  ground  of  nonsuit,  under  the  plea  of  the 
general  issue,  or  demur,  or  move  in  arrest  of  judgment,  or 
support  a  writ  of  error,  although  the  objection  appear  upon 
the  face  of  the  declaration  or  other  pleading  of  the  plaintiff.^ 

§  76.  When  all  of  the  parties  plaintiff  do  not  have  an  in- 
terest in  the  cause  of  action,  it  is,  in  one  sense,  a  misjoinder 
of  plaintiffs ;  but,  in  a  more  important  sense,  it  is  a  failure  to 
make  a  case  entitling  the  plaintiffs  to  recover.^  Hence,  in 
such  cases  in  New  York,  before  the  Code,  parties  thus  caught 
would  have  been  nonsuited.  Now,  under  the  provisions  of 
the  Code,  judgment  may  be  given  for  one  plaintiff  and  against 
the  other,  if  the  objection  is  taken  upon  the  trial  by  motion 
for  a  nonsuit  or  otherwise.  If  the  objection  appears  upon 
the  face  of  the  complaint,  and  is  taken  by  demurrer,  and 


'  Adams  v.  Barry,  10  Gray,  361 ;  Baldwin  v.  Western  R.  R.  4  lb.  333;  Rising 
V.  Granger,  1  Mass.  47 ;  Warner  v.  Bacon,  8  Gray,  397. 

^  Adams  v.  Barry,  svpra.  '  Westwood  v.  Cowne,  1  Stark.  173. 

*  1  Chit.  PI.  7G;  AJjbe  v.  Clark,  31  Barb.  238;  Jones  v.  Lowell,  35  Maine,  538; 
Cabell  V.  Vaughan,  1  Saund.  291 ;  True  v.  Congdon,  44  N.  H.  48;  Child  v.  Sands, 
Salk.  31;  Brown  v.  Hedges,  Salk.  290;  Addison  v.  Overend,  6  T.  R.  766;  Wil- 
braham  v.  Snow,  2  Saund.  47;  Thompson  y.  Ploskins,  11  Mass.  419;  Bradish  v. 
Schenk,  8  Johns.  151 ;  Wilson  v.  Gamble,  9  N.  Hamp.  74. 

'  See  post,  §  952. 


80  TRESPASS    AS   A   REMEDY.  §  76, 

amendment  maybe  allowed  upon  terms  ;^  when  husband  and 
wife  unite  in  bringing  a  joint  action,  and  the  facts  stated  do 
not  show  a  joint  cause  of  action  in  them,  a  demurrer  will  lie, 
upon  the  ground  that  the  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.^ "' 


'Mann  v.  Marsh,  35  Barb.  68;  N.  Y.  Code,  §§  274,  173;  but  see  Abbe  v. 
Clark,  31  Barb.  238. 

^  Manu  V.  Marsh,  supra. 

*  Where  there  is  no  statutory  provision  to  the  contrary,  actions  by  the  State, 
or  for  the  benefit  of  the  State,  are  to  be  brought  in  the  name  of  the  State  in  cases 
where,  upon  common  law  principles,  the  legal  interest  in  the  subject-matter  is  in 
the  State.  State  v.  Bradish  (34  Vt.  419),  was  an  action  of  tres\>ass  quare  clausum 
/regit,  and  for  carrying  away  certain  articles  of  personal  property  alleged  to  be- 
long to  the  state  of  Vermont.  Tlie  property  in  question,  consisting  mainly  of 
tools  for  cutting  stone  for  rebuilding  the  State  House,  was,  when  taken  by  the 
defendant,  in  a  temporary  blacksmith  shop  on  the  locus  in  quo,  and  in  the  use  of 
men  in  the  employment  of  the  State.  The  defendant  took  the  property  as  dep- 
uty sheriff,  by  virtue  of  a  writ  of  attachment  against  one  Heustis.  It  appeared 
that  Heustis  had  originally  taken  the  contract  for  building  the  State  House,  and 
that  he  had  provided  himself  with  the  necessary  tools  and  implements,  but  that 
he  had  afterward  given  up  his  contract  and  tools  to  the  State.  It  was  insisted 
by  the  defendant's  counsel  that  the  action  could  not  be  maintained  in  the  name 
of  the  State.  The  Supreme  Court,  in  atiirming  the  judgment  of  the  County  Court, 
which  was  for  the  plaintiff,  said :  "The  existence  of  the  State  and  its  capacity  to 
maintain  suits  being  of  a  public  character,  the  court  will  take  judicial  notice 
whether,  by  law,  it  can  maintain  this  suit  in  the  name  of  the  State.  It  is  pro- 
vided in  the  Constitution,  as  well  as  by  statute,  that  criminal  prosecutions  shall 
be  in  the  name  of  the  State;  but  the  Constitution  is  silent  as  to  the  mode  of 
prosecuting  civil  suits  in  behalf  of  the  State,  or  suits  in  which  the  State  is  the 
real  plaintiff  or  interested.  Hence,  in  the  absence  of  legal  regulations  to  the 
contrary,  the  common  principle  applicable  to  other  parties  must  apply;  that 
is,  the  suit  must  be  in  the  name  of  the  person  or  party,  whether  natural,  or  cor- 
porate and  artificial,  having  the  legal  interest.  There  is  no  statute  prohibiting 
the  State  from  bringing  suits  in  its  own  name,  and  no  statute  providing  that  all 
actions  by  the  State  shall  be  commenced  and  prosecuted  in  any  other  name. 
There  are  numerous  provisions  in  the  statutes  for  bringing  certain  suits  in  the 
name  of  particular  officers  of  the  State,  such  as  the  State  treasurer,  and  seme  other 
officers.  In  relation  to  actions  coming  within  such  provisions,  probably  the  stat- 
ute must  be  followed;  but  beyond  this,  no  prohibition  against  prosecuting  suits 
in  the  name  of  the  State  of  Vermont  can  be  implied.  On  the  contrary,  it  is  evi- 
dent, from  the  statutes  on  this  subject,  that  there  are  civil  suits  which  may  be 
brought,  aa  this  is,  in  the  name  of  the  State.  Chap.  9,  §  50,  Comp.  Stat.  p.  84, 
expressly  provides  that,  in  case  of  default  of  a  State's  attorney,  the  auditor  of 
accounts  shall  cause  a  suit  to  be  brought  against  him,  '  in  tJie  name  of  the  State 
of  Vermont.''  In  chapter  42,  Comp.  St.  §  6,  p.  '^98,  entitled  'Forfeiture  of  Grants,' 
which  includes  grants  of  land  by  the  State,  it  is  provided  that  the  proceedings 
shall  be  by  writ  of  scire  facias,  Hn  the  name  of  the  State.''  In  chap.  61,  §  21,  p. 
380,  entitled,  'The  limitation  of  real  and  personal  actions  and  rights  of  entry,' 
it  is  provided  tliat  the  limitations  therein  prescribed  shall  apply  to  the  same  ac- 
tions when  brought  in  the  name  of  the  State,  or  in  the  name  of  any  officer,  or 
otherwise,  for  the  benefit  of  the  State,  in  the  same  manner  as  to  actions  brought 
by  citizens.  There  must  be  numerous  instances  where  the  State  w'ould  have  occa- 
sion to  bring  suits  where  no  provision  is  made  for  bringing  them  in  the  name  of 
any  officer  of  the  State;  and  unless,  in  such  cases,  the  State  can  maintain  actions 
in  its  own  name,  the  legislation  on  this  subject  is  very  defective." 


§§  77-79.  PLEA.  81 

15.  Plea. 

§  77.  Every  plea  in  bar  must  either  contain  a  denial  of 
tlie  plaintiff's  allegations,  or  must  confess  and  avoid  the  facts 
stated  in  the  declaration.  The  former  constitutes  the  general 
issue ;  while  matter  in  confession  and  avoidance  is  pleaded 
specially.  AVhen  the  matter  thus  specially  pleaded  amounts 
to  a  mere  denial  of  the  allegations,  which  the  plaintiff",  under 
a  plea  of  not  guilty,  must  necessarily  prove  to  maintain  his 
action,  it  is  bad.^  * 

§  78.  Defenses  apparently  inconsistent,  are  allowed  to  be 
interposed  by  separate  pleas.  Not  guilty,  and  a  justification, 
and  accord  and  satisfaction,  may  be  pleaded  together ;  or  not 
guilty,  and  son  assault  demesne  j  or  a  license,  and  justifica- 
tion ;  or  not  guilty,  and  liberum  tenementum  ;  and  so  of  sev- 
eral other  defenses,^ 

§  79.  There  may  be  one  plea  to  one  part  of  the  declaration, 
and  a  different  plea  to  another  part ;  but  the  pleas  must  show 
with  certainty  what  part  of  tlje  declaration  each  plea  is  intended 
to  answer.^  If  the  declaration  contain  two  counts  for  the  same 
offense,  to  both  of  which  the  defendant  pleads  the  general  issue, 
and  to  one  a  special  plea  in  bar,  and  the  evidence  supports 
the  latter,  he  will  be  entitled  to  a  verdict  on  both  issues.* 


'  1  Chit.  PI.  9tli  Am.  ed.  p.  527 ;  Doman  v.  Long,  2  Barb.  214. 
""  Walrath  v.  Barton,  11  Barb.  383. 

^  Orange  v.  Berry,  4  Fost.  105 ;  Osborne  v.  Rogers,  1  Saund.  264 ;  Cottingbam 
V.  The  State,  7  Black,  405. 

*  Curl  V.  Lowell,  19  Pick.  25. 

*  When  a  plea  confesses  and  avoids  the  material  facts  in  the  declaration, 
there  must  not  also  be  a  traverse,  because  it  shall  not  be  in  the  power  of  the 
party,  Ijy  adding  a  traverse,  to  prevent  the  other  party  from  denying  the  facts 
which  avoid  his  title  (Cystead  v.  Shed,  13  Mass.  520;  s.  c.  12  Mass.  505).  In 
Vermont,  the  statute  (Genl.  Sts.  p.  200,  §  44)  allowing  a  tender  to  be  pleaded  in 
actions  for  torts,  the  tender  was  not  intended  to  be  made  tlie  subject  of  a  i)lea  in 
bar,  to  be  tried  by  a  jury,  l)ut  only  a  matter  to  be  acted  on  by  the  court  in  the 
taxation  of  costs,  in  the  discretion  of  the  court,  under  the  limitations  therein 
prescril)ed.  The  jury  are  to  try  tlie  case  without  refei'ence  to  the  tender;  and  in 
taxing  costs,  if  it  appears  to  the  court  that  the  defendant  tendered  a  sum  equal 
to,  or  greater  tlian,  tlie  amount  of  damages  found  by  the  jury,  and  costs  up  to 
the  time  of  the  tender,  the  plaintiff  recovers  no  costs  accruing  after  the  tender; 
and,  in  that  event,  tlie  court,  in  their  discretion,  may  allow  the  defendant  to  re- 
cover costs  accruing  after  the  tender  (Adams  v.  Morgan,  39  Vt.  302,  citing  Smith 
V.  Wilbur,  35  Vt.  133).  In  an  action  of  trespass,  the  defendant,  by  pleading  the 
general  issue,  waives  all  dilatory  defenses  (Hill  v.  Morey,  26  Vt.  178). 

Vol.  L— 6 


82  TRESPASS   AS  A  REMEDY.  §§  80,  81. 

§  80.  As  a  bare  intent  not  acted  upon,  mutable  in  its  na- 
ture, and  whicli  may  never  be  carried  into  effect,  cannot  ren- 
der a  lawful  act  unlawful,  such  an  intent  is  not  issuable. 
But  where  the  party,  at  the  time  of  the  alleged  offense,  was 
acting  in  pursuance  of  his  illegal  purpose,  the  intent  is  ma- 
terial, and  may  be  traversed.  French  v.  Marstin^  was  an 
action  for  assault  and  battery,  to  which  the  defendant  pleaded 
that  the  plaintiff  broke  and  entered  the  defendant's  close,  and 
refusing  to  depart  when  requested,  the  defendant  gently  laid 
his  hands  upon  him  and  removed  him.  The  plaintiff  replied, 
the  grant  of  a  right  of  way  from  the  highway  to  a  quarter- 
acre  lot  described,  »and  that  he  was  going  across  the  defend- 
ant's land  in  this  way,  and  not  out  of  it,  to  go  to  that  quarter 
acre.  The  defendant,  in  his  rejoinder,  admitted  the  right  of 
way  claimed  to  the  quarter  acre,  and  that  the  plaintiff  was 
passing  across  his  land  in  his  way,  and  to  the  quarter  acre ; 
but  he  alleged  that  the  plaintiff,  at  the  time,  &c.,  was  passing 
into,  over,  and  across  the  said  close  of  the  defendant,  and 
through  said  one-fourth  of  an  acre,  to  other  lands  of  the 
plaintiff,  lying  farther  than  and  beyond  the  said  one-fourth  of 
an  acre,  known,  <fec.  The  objection  of  the  plaintiff  was,  that 
this  was  but  an  imperfect  mode  of  stating  that  the  plaintiff' 
was  intending  to  go  to  lands  beyond  the  quarter  acre,  and 
that  such  intention  was  not  issuable.  It  was  held  that,  al- 
though the  passing  of  the  plaintiff  through  the  quarter- acre 
lot  was  not  necessarily  a  wrong,  yet  it  was  prrtna  facie  such, 
and  the  plaintiff  must  set  out  the  facts  which  deprived  it  of 
its  wrongful  character,  or  deny  the  passing  with  the  wrong- 
ful object  charged,  and  that  his  intent  would  then  be  a  ques- 
tion for  the  jury. 

§  81.  Where  the  action  is  against  several,  the  defendants 
may  plead  separately  or  jointly  ;  ^  but  on  a  joint  plea  in 
trespass,  no  separate  justification  can  be  set  up.  The  plea 
being  entire,  cannot  be  good  in  part  and  bad  in  part,  an 
entire  plea  not  being  divisible.     Each  defendant  waives  any 

'  4  Post.  440.  ^  Lansing  v.  Montgomery,  3  Johns.  382, 


§  82.  PLEA.  83 

privilege  or  defense  peculiar  to  himself,  and  must. share  the 
fate  of  his  associates  as  to  any  matter  of  justification.  Con- 
sequently, if  the  matter  jointly  pleaded  be  insufficient  as  to 
one  of  the  parties,  it  is  so  as  to  all.^  An  officer  even  forfeits 
his  right  to  double  costs  under  the  statute  by  uniting  in  a 
plea  with  a  defendant  who  has  not  the  same  right.^  Declara- 
tion in  trespass  against  three.  Plea  by  all,  not  guilty. 
Separate  pleas  of  justification  by  two.  Replication  to  these 
pleas  that  those  two  defendants  were  guilty  of  excess.  Re- 
joinder by  all  three  defendants  that  they  were  not  all  three 
guilty  of  excess.  On  demurrer,  the  rejoinders  were  held  ill, 
and  judgment  was  rendered  for  the  plaintifi^.^  * 

§  82.  It  is  an  established  rule  of  the  common  law,  that  if 
a  defendant  has  cause  of  justification  or  excuse,  he  must 
plead  it,  and  cannot  give  it  in  evidence  under  the  general 
issue.  The  reason  of  the  rule  applies  to  actions  for  trespass, 
it  being  necessary  to  prevent  surprise,  and  to  enable  parties 
to  go  to  trial  on  equal  terms.^  f     In  Briggs  v.  Mason ,^  the 


'  Schermerlinrn  v.  Tripp,  2Caines,  108;  Earl  of  Manchester  v.  Vale.  1  Saund. 
28,  note  2 ;  Bradley  v.  Powers,  7  Cowen,  330 ;  Moors  v.  Parker,  3  Mass.  310 ;  Glea- 
son  V.  Edmunds,  2  Scam.  448. 

^  Merrill  v.  Near,  5  Wend.  237;  AVales  v.  Hart,  2  Cowen,  426. 

=  Morrow  v.  Belcher,  7  D.  &  E.  187;  4  B.  &  C.  704;  Anon.  Lofft.  364. 

*  Hall  V.  Fearnley,  3  Gale  &  D.  10;  7  Ju.r.  61;  12  L.  J.  N.  S.  22;  Walker  v. 
Hitchccck,  19  Vt.  034;  Austin  v.  Norris,  11  lb.  38;  Pearcy  v.  Walter,  6  Car.  & 
P.  232;  Fuller  v.  Rounceville,  9  Fost.  554. 

"  31  Vt.  433. 

*  "The  principle  has  been  established  that  if  two  or  more  defendants  join 
in  a  justification  of  a  trespass,  by  a  special  plea  which  would  have  been  a  justifi- 
cation to  some  of  them  had  they  pleaded  it  separately,  but  which  would  not 
justify  others  of  them,  the  plea  is  bad  as  to  all.  The  reason  is.  that  the  court 
cannot  sever  the  justification,  and  say  that  one  is  guilty  and  the  other  is  not, 
when  they  all  put  themselves  on  the  same  terms.  This  rule  is  a  very  artificial 
one,  and  ought  never  to  be  extended  beyond  the  very  cases  to  which  il  has  been 
applied ;  and  it  may  safely  be  asserted  that  it  never  has  been  extended  to  the 
general  issue  of  not  guilty  pleaded  jointly  "  (Spencer,  Ch.  J.,  delivering  opinion 
in  Higl)y  v.  Williams,  16  Johns.  215). 

After  issue  joined,  the  defendant  may  move  to  withdraw  the  general  issue, 
pay  money  into  court,  and  jilead  {h  novo  (Devayncs  v.  Boys,  2  Marsh.  356;  7 
Taunt.  33;  Nestor  v.  Newcome,  4  D.  &  R.  776;  3  B.  &  C.  159).  Where  the 
general  issue  is  on  record,  and  the  defendant  means  to  sutler  judgment  by 
default  on  a  new  assignment,  so  much  of  the  general  issue  as'applies  to  the  tres- 
passes newly  assigned  should  be  withdrawn  (Cross  v.  Johnson,  4  M.  &  K.  290). 

t  Mr.  Starkie  (Tr.  on  Ev.  vol.  3,  p.  1462)  says:  "The  defendant  cannot 
under  the  general  issue,  except  by  virtue  of  the  po&itive  enactment  of  a  statute, 


84  TRESPASS    AS  A  REMEDY.  §  82. 

'  defendant  songlit  to  estaljlisli  tlie  following  exception :  That 
when  the  plaintiff,  in  proving  the  trespass,  also  proves  those 
facts  which  justify  the  trespass,  so  that  in  reality  no  prima 

facie  trespass  is  established  by  the  plaintiff,  which  is  not  at 
the  same  time  disproved,  then  the  matter  in  justification 
may  be  relied  upon  under  the  general  issue.  It  was  urged 
that  the  object  in  requiring  a  special  plea  being  to  apprise 
the  plaintiff'  6i  the  facts  to  be  relied  upon  in  defense,  where 
the  plaintiff  himself  proved  those  facts,  the  reason  of  the 
rule  ceased.     But  the  court  did  not  adoj)t  this  view.* 


give  in  evidence  any  matter  in  excuse,  justification,  or  satisfaction  of  the  alleged 
trespass,  or  any  interest  short  of  jjroperty  and  nght  of  possession — such  as  a 
right  of  common,  or  a  public  or  private  right  of  way,  or  a  right  to  an  easement." 
The  same  rule  is  found  in  1  Chitty's  PL  492,  and  several  authorities  are  cited  to 
support  it,  that  wherever  the  act  would  he  prima  facie  a  trespass  at  common  law', 
any  matter  of  justification  or  excuse  must  be  pleaded.  And  see  Babcock  v. 
Lamb,  1  Cowen,  238,  where  this  very  point  was  decided. 

At  common  law,  the  pleadings  and  evidence  formed  coiTelative  branches 
of  the  law,  and  were  in  symmetiy.  A  party  was  bound  to  prove  what  he 
alleged,  if  traversed,  and  he  was  neither  bound  nor  permitted  to  prove  more ; 
not  bound  to  prove  more,  as  he  had  not  so  undertaken,  and  would  be  therefore 
unprepared,  and  not  permitted,  as  it  would  be  a  surprise  on  the  opposite  party. 
This  extended  early  to  all  personal  actions  then  in  use — trespass,  detinue,  re- 
plevin, account,  covenant,  and  debt.  Afterward,  in  the  actions  of  trover,  as- 
sumpsit, and  trespass  on  the  case,  this  rule  was  much  relaxed,  and  the  relaxation 
gradually  extended  to  debt,  and  perhaps  to  some  other  actions  ex  contractu.  The 
expense  which  this  occasioned,  in  preparing  at  all  points,  induced  a  law  in  En- 
gland by  which  every  matter  was  required  to  be  specially  pleaded,  even  in 
assumpsit.  This  relaxation,  neither  in  England  or  America,  ever  extended  to 
the  action  of  trespass  (Austin  v.  Norris,  11  Vt.  88). 

Where  the  statute  provides  that  a  written  notice  of  facts  relied  upon  in  de- 
fense may  accompany  the  general  issue,  it  follows  that  if  the  evidence  given 
under  such  notice  establishes  a  legal  defense,  the  issue  must  be  found  for  the  de- 
fendant, although,  in  the  outset,  the  plaintiff  may  have  fully  made  out  his  cause 
of  action  (Paige  v.  Smith,  18  Vt.  251). 

Where  an  alleged  trespass  requires  a  denial  or  refutation,  which  the  defend- 
ant refuses  to  make,  it  is  presumjjtive  evidence  of  the  truth  of  the  charge  (Wheat 
V.  Groom,  7  Ala.  349). 

*  Matters  which  do  not  directly  contradict  that  which  a  plaintiS"  is  bound 
to  prove  in  an  action  of  trespass  under  the  general  issue,  but  which  show  col- 
laterally that  the  action  is  not  maintainable,  must  be  specially  pleaded,  or  a  brief 
statement  thereof  filed  under  the  statute.  Therefore,  in  an  action  of  trespass 
for  killing  a  horse,  the  defendant  cannot  under  the  general  issue  be  permitted 
to  prove  that  he  acted  in  self-defense  (Stow  v.  Scribner,  6  New  Hamp.  24). 

An  act  done  by  authority  must  be  specially  pleaded  (Martin  v.  Clark,  1  Hemp, 
259). 

In  an  action  of  trespass,  an  arbitration  and  award  must  be  specially  pleaded, 
and  cannot  be  proved  under  the  plea  of  accord  and  satisfaction  (Hubbert  v.  Col- 
lier, 6  Ala.  269). 

The  right  of  possession  must  be  pleaded  under  the  general  issue,  and  not 
specially  (Sage  v.  Keesecker,  1  Morris,  838). 

Under  the  plea  of  not  guilty,  in  trespass,  and  notice  of  a  former  recovery  by 


§§  83,  84.  PLEA.  85 

§  83.  If  a  defendant,  in  justification  of  a  trespass,  relies 
either  on  an  authority  in  law  or  in  fact,  it  is  sufficient  to  set 
forth  this  authority  in  his  plea.  If,  by  an  abuse  of  an  au- 
thority in  law,  he  becomes  a  trespasser  ab  initio^  or  if  an 
authority  in  fact  is  exceeded,  so  as  to  be  no  justification  for 
what  was  done  farther  than  the  authority  warranted,  such 
abuse  or  such  excess  must  be  set  forth  in  a  rejDlication.  A 
defendant  ma}^,  however,  in  his  plea,  set  forth  such  proceed- 
ings on  his  part  as  will  show  him  to  be  a  trespasser  ah 
initio.  As  if  in  justifying  the  taking  on  an  execution  or 
warrant  for  the  collection  of  taxes,  he  should  state  that  he 
sold  the  property  taken  at  private  sale,  the  plaintiff  might 
demur,  and  it  would  not  be  necessary  to  point  out  the  abuse 
by  a  replication.  But  if,  in  stating  his  proceedings  after  the 
taking,  he  neglects  to  state  those  steps  which  he  ought  to 
have  taken  in  order  to  render  his  proceedings  regular,  it  is  a 
mere  omission ;  and  as  it  was'  not  necessary  for  him  to  set 
forth  anything  more  than  would  justify  the  taking,  so,  if  he 
neglect  to  state  his  after  proceedings,  or  states  them  defect- 
ively, he  is  not  on  that  account  to  be  treated  as  a  trespasser 
fi'om  the  beginning.^ 

§  84.  A  former  recovery  must  be  specially  pleaded,^  A 
recovery  in  trespass  is  a  bar  to  an  action  brought  for  a 
trespass  committed  prior  to  the  commencement  of  the  action 
in  which  the  recovery  was  had  ;  otherwise,  it  would  be  in 
the  power  of  a  party  to  split  up  trespasses  and  multiply 
actions  for  every  distinct  act.'^ "'  In  White  v.  Mosely,*  it  was 
held,  that  when  there  are  distinct  torts  committed  consecu- 
tively, but  in   different  places,  and  the  plaintiff  brings  his 


the  defendant  in  a  suit  for  the  same  cause  of  action,  the  proof  must  I)e  such  as 
■would  supijort  a  good  plea  in  bar,  if  pleaded  specially  (Clark  v.  Harrington,  4 
Vt.  69). 

'  Andrews  v.  Chase,  5  Vt.  409. 

=>  Young  V.  Rummell,  2  Hill,  478;  s.  c.  5  Hill,  60;  Plahn  v.  Ritter,  12  111.  80. 

'  Fields  V.  Law,  2  Root,  320;  iwat,  %  102.  "  8  Pick.  356. 

*  In  an  action  against  several,  an  answer  setting  up  a  former  recovery  against 
one,  to  be  good,  must  aver  actual  satisfaction  (Wehle  agst.  Butler,  43  How.  Pr. 
R.  5 ;  Wies  agst.  Fanning,  9  lb.  543). 


86  TRESPASS    AS   A  REMEDY.  §  85. 

action  for  one  only,  such  former  suit  and  judgment  tliereon, 
altliough  the  action  might  proj)erly  have  embraced  both  the 
torts,  yet  constitutes  no  bar  to  a  second  action  for  the 
other  act.  But  the  case  of  Trask  v.  Hartford  &  New 
Haven  R.  K^  decided  that  a  judgment  in  a  civil  suit  upon 
a  certain  alleged  cause  of  action  was  conclusive  upon  the 
j)arties  in  relation  to  it,  and  that  another  suit  for  the  same 
cause  could  not  be  maintained  for  any  purpose  what'ever. 
In  that  case,  the  claim  for  damages  in  the  different  actions 
was  wholly  distinct,  the  one  being  the  loss  of  a  shop  and  the 
other  the  loss  of  a  dwellino:-house.  No  damao;es  had  been 
claimed  or  recovered  in  the  first  action  for  the  loss  of  the 
house;  but  the  loss  of  each  was  caused  by  the  same  tor- 
tious act,  and  one  recovery  for  any  part  of  the  damages 
caused  by  such  act  was  held  a  bar  to  a  second  action. 
The  court  said  that  "  it  would  be  unjust,  as  well  as  in  vio- 
lation of  the  fixed  rule  of  law,  to  allow  the  plaintiff  to 
subject  the  defendants  to  the  hazard  and  expense  of  another 
suit,  to  obtain  an  advantage  which  he  lost  either  by  his  own 
carelessness  and  neglect,  or  by  an  intentional  withholding  of 
a  part  of  his  proof 

§  85.  Under  a  general  submission  of  all  matters  exist- 
ing between  the  parties,  if  a  party  withholds  a  part  of 
his  claim  from  the  arbitration,  he  cannot,  as  a  general  rule, 
afterward  enforce  it  against  the  other  party  to  the  submis- 
sion. But  as  the  cases  on  this  subject  proceed  on  the 
ground  that  the  party  is  bound  by  his  contract  of  submis- 
sion to  present  the  claim  and  have  it  adjudicated  by  the 
arbitrator,  it  does  not  operate  to  bar  him  from  his  remedy 
against  one  who  was  no  party  to  the  submission.  Therefore 
the  submission  to  arbitration  of  all  matters  cxistino;  between  a 
creditor  and  debtor  was  held  not  to  bar  the  debtor's  remedy 
against  an  officer  not  a  party  to  the  submission  who  wrong- 
fully attached  and  sold  the  debtor's  only  cow  under  a  writ 
in  favor  of  the  creditor.^ 

'  2  Allen,  331.  "  Robiuson  v.  Hawkins,  38  Vt.  693. 


|§  86,  87.  REPLICATION.  87 

16.   Replication. 

§  86.  The  plaintiff  need  only  traverse  the  substantial 
averments  in  tbe  plea  of  justification.  Where  the  defendant, 
justified  under  a  prescriptive  right  to  a  duty  called  tensary, 
and  to  the  like  right  to  distrain  for  it,  it  was  held  that  the 
plaintiff  might  traverse  the  riglit  to  the  duty  without  trav- 
ersing the  right  to  distrain.^  The  defendant  pleaded  that 
disputes  existing  between  him  and  the  plaintiff',  including 
the  plaintiff" 's  claim  in  respect  of  the  alleged  trespass,  it  was 
agreed  by  the  plaintiff  and  defendant  that  the  claims  should 
be  mutually  relinquished,  and  that  the  defendant  should  pay 
to  the  plaintiff  5/.,  as  a  final  settlement  and  a  full  satisfaction 
and  discharge  of  all  the  plaintiff's  claims  against  the  defend- 
ant, and,  amongst  other  things,  of  all  the  damages  sustained 
by  the  plaintiff"  by  reason  of  the  trespass  ;  and  that  the  de- 
fendant did,  in  pursuance  of  such  agreement,  before  action, 
pay  the  plaintiff"  the  said  sum  as  a  final  settlement,  and  in 
full  satisfaction  and  discharge  of  all  claims,  &c.,  and,  amongst 
otter  things,  of  all  damages,  <fec. ;  and  that  the  plaintiff  then 
accepted  and  received  from  the  defendant,  as  sucb  settlement, 
satisfaction  and  discharge,  the  said  sum.  It  was  held  that  a 
replication  traversing  the  agreement,  though  not  noticing  the 
payment  or  acceptance,  answered  the  plea.^ 

§  87.  Where  the  defendant  pleads  that  he  tendered  to 
the  plaintiff  a  certain  sum,  being  sufficient  amends,  the 
plaintiff  should  reply  that  the  defendant  did  not  tender  the 
sum  named,  or  that  the  sum  was  insufficient,  and  not  that  he 
did  not  tender  suflicient  amends.^  A  replication  to  a  plea  of 
property  in  the  defendant,  traversing  the  same,  and  averring 
property  in  the  plaintiff,  is  irrelevant.^  If  the  trespass  be 
continuing,  consisting  of  a  series  of  connected  acts  extending 
over  a  considerable  period,  the  acts  which  constitute  the 
entire  trespass  are  divisible,  and  may  be  replied  to  separately. 

'  Griffith  V.  Williams,  1  Wils.  338.  "-  Bainbridgc  v.  Lax,  9  Q.  B.  819. 

'  Williams  v.  Price,  3  B.  «&  Adol.  695. 

'  Outcalt  V.  Darling,  1  Dutcher,  N.  J.  443. 


88  TRESPASS    AS  A  REMEDY.  §§  88,  89- 

Accordingly,  Avliere  tlie  declaration  alleged  that  the  defend- 
ant entered  the  plaintiff's  house,  and  stayed  therein  four 
days,  and  the  defendant  pleaded  that  he  had  a  right  to  enter 
and  stay  two  days,  to  which  the  plaintiff  replied,  denying  his 
right  to  enter  at  all,  but  alleging  that  if  he  had  a  right,  it 
was  to  stay  two  days  only,  and  that  he  had  stayed  two  days 
more  without  any  color  of  authority,  it  was  held  that  the 
trespass  w^as  divisible  and  the  replication  good.^ 

§  88.  It  is  not  necessary  to  reply  excess  in  every  case, 
where  the  allegations  in  the  declaration  are  covered  by  a 
plea  of  justification.  Evidence  of  acts  consistent  with  the 
declaration,  but  not  within  the  jus^tification,  may  be  given 
under  de  injuria?  A  general  replication  de  injuria^  how- 
ever, is  bad  when  the  defendant  insists  on  a  right,  and  is 
good  only  when  he  pleads  matter  of  excuse,  but  it  w411  be 
cured  by  the  verdict.^ 

l7.  New  assignnnent. 

§  89.  A  new  assignment  is  employed  to  ascertain  with 
precision,  what  has  been  alleged  only  generally  in  the  dec- 
laration. It  is  used  to  explain  that  more  fully  which  is  only 
apparently  answered  by  the  plea.  A  very  common  instance 
of  its  use  is  when  the  plaintiff  has  declared  generally  for  a 
trespass  to  his  close  in  a  certain  town,  without  a  particular 
description  of  the  boundaries ;  and  the  defendant  justifies  an 
entry  into  a  close  in  that  place,  describing  it,  which  is,  in 
fact,  not  the  close  the  plaintiff  intended.  Where  the  parties 
agree  as  to  the  place,  the  plaintiff  cannot  new  assign  with 
reference  to  that.  ^  The  necessity  for  a  n^ew  assignment  in 
any  case  is  not  so  much  for  the  purpose  of  giving  information 
to  the  defendant  and  enable  him  to  meet  the  charge  and  pre- 
vent his  being  misled,  as  to  conform  to  the  technical  rules. 


'  Loweth  V.  Smith,  12  M.  &  W.  582;  Worth  v.  Terringtou,  13  M.  &  W.  781. 

*  Reece  v.  Taylor,  4  Nev.  &  M.  469 ;  1  Har.  &  W.  15. 

'  Lytle  V.  Lee,  5  .Johns.  112. 

"■  1  Chitty's  PI.  413;  1  Wms.  Sauud.  299  b,  note;  lb.  300. 


§§  90,  91.  NEW  ASSIGNMENT.  89 

pleadings  and  practice  of  tlie  court.  It  is  unknown  in 
equity  and  admiralty.  In  New  York  it  is  superseded  by 
the  Code.^ 

§  90.  Where  there  is  a  new  assignment  by  the  plaintiff, 
without  denying  the  special  plea,  the  plaintiff  is  restricted  to 
such  trespasses  as  are  newly  assigned.^  The  plaintiff  in 
an  action  of  trespass  charged  tw^o  distinct  acts  of  trespass, 
which  the  defendant  in  his  plea  undertook  to  justify;  where- 
upon the  plaintiff  newly  assigned  another  trespass,  which  he 
averred  was  different  from  those  mentioned  in  the  plea ;  and 
to  the  trespass  newly  assigned,  the  defendant  pleaded  not 
guilty.  It  was  held  that  the  plaintiff  was  bound  to  prove 
another  and  different  trespass  from  those  charged  in  the  writ, 
and  that  if  the  plea  in  justification  was  insufficient,  he  should 
have  traversed  it  or  demurred.  ^  ^ 

§  91.  Where  the  plaintiff  complains  of  a  single  act  of 
trespass  in  each  count,  each  of  which  is  justified  by  the  de- 
fendant in  his  several  pleas,  the  plaintiff  cannot  in  his  repli- 
cation take  issue  upon  the  facts  of  such  justification,  and  also 
newly  assign  either  the  same  or  different  matters ;  such  repli- 
cation and  new  assignment  being  double."*  And  the  objec- 
tion is  sufficiently  indicated  by  stating  as  special  cause  of 
demurrer,  that  the  plaintiff'  had  attempted  to  put  in  issue 
several  distinct  acts.  °  A  replication  de  injuria,  with  a  new 
assignment  that  the  defendant  committed  the  trespass  with 
more  violence  and  in  a  greater  degree  than  was  necessary  for 
the  purposes  in  the  plea  mentioned,  is  demurrable.  ^ 


'  Stewart  v.  Wallis,  80  Barb.  344.  -  Bragg  v.  Wetzel,  5  Blackf.  95. 

'  Boynton  v.  Willarcl,  10  Pick.  160.  See  Am.  Jurist,  Vol.  II,  where  this 
case  is  doubted. 

*  Stults  V.  Buckelew,  4  Dutchcr,  N.  J.  150;  Taylor  v.  Smith,  7  Taunt.  156. 

"  Cheaslev  v.  Barnes,  10  East,  73.     See  Thomas  v.  Marsh,  5  Car.  &  P.  596; 
Gisborne  v.  Wyatt,  1  Gale,  35;  Worth  v.  Terrington,  13  M.  &  W.  781. 
«  Ii)id. 

*  The  second  count  in  trespass  being  a  general  one,  will  not  always  obviate 
the  necessity  of  a  new  assignment  (Smith  v.  Milles,  1  T.  R.  480).  There  can 
only  be  a  new  assignment  where  there  is  a  special  plea  (lb.). 


DO  TRESPASS    AS  A   REMEDY.  §§  92,  93. 

18.  Higlit  to  open  and  close. 

§  92.  Where  the  defendant  by  his  plea,  admits  the  whole 
cause  of  action  stated  in  the  declaration,  and  undertakes  to 
remove  or  defeat  it  by  new  matter  set  up  in  his  bar — as 
when  in  trespass  to  land,  the  defendant  acknowledges  the 
act,  and  claims  jn  his  jjlea  the  soil  and  freehold  in  himself  or 
some  one  under  whom  he  acts — he  has  the  affirmative  or 
primary  burden  of  proof,  and  the  right  to  open  and  close  at 
the  trial. -^  In  a  case  in  Massachusetts,^  a  new  trial  was 
granted  because  this  privilege  was  denied  to  the  defendant 
in  the  court  beloAv,  notwithstanding  the  verdict  appeared  to 
be  right. 

19.  Evidence. 

§  93.  If  affirmative  pleas  are  pleaded  with  the  general 
issue,  the  plaintiff  may,  if  he  choose,  give  in  evidence  any 
matter  which  goes  to  destroy  the  justifications  so  pleaded,  by 
Avay  of  anticipating  the  defense.  Or  he  may  content  himself 
with  proving  the  facts  charged  in  the  declaration,  and  let  the 
defendant  make  out  what  he  can  in  justification,  and  trust  to 
answering  it  by  evidence  in  reply.  But  if  he  does  this,  he 
will  be  restricted  to  such  evidence  as  goes  to  answer  the  case 
attempted  to  be  made  out  by  the  defendant  in  support  of 
his  pleas.  ^  Where  a  justification  is  pleaded  to  which  the 
plaintiff  new  assigns  that  the  action  is  brought  for  another 
and  different  trespass  than  that  mentioned  in  the  plea,  and 
not  guilty  is  pleaded  to  the  new  assignment,  if  the  plaintiff 
give  in  evidence  only  one  trespass,  it  is  incumbent  on  him  to 
show  that  the  trespass  so  given  in  evidence,  is  clearly  a  dif- 
ferent one  from  that  mentioned  in  the  plea;  if  the  circum- 
stances are  alike,  the  jury  ought  to  consider  it  to  be  the  same.* 


'  Seavy  v.  Dearborn,   19  N.  Haiup.  351;  Ayer  v.  Austin,  6  Pick.  225;  post^ 
§243. 

'  Davis  V.  Mason,  4  Pick.  15G.     See  Sedgwick  on  Damages,  Gth  ed.  738,  739, 
740. 

'  Pierpont  v.  Shapland,  1  Car.  &  P.  447. 

*  Darby  v.  Smith,  2  M.  &  Rob,  184. 


§§  94-9G.  EVIDENCE.  91 

§  94.  The  plaintiff  may  in  general  recover  without  prov- 
ing the  wliole  declaration,  provided  he  proves  so  much  of  it 
as  would,  standing  alone,  constitute  a  good  ground  of  action. 
There  is  an  exception  to  the  rule  where  the  count  contains 
matter  of  description,  and  in  consequence  of  proving  only  a 
part,  the  proof  does  not  correspond  with  the  allegation.  In 
the  latter  case,  the  variance  will  be  fatal.  ^ 

§  95.  All  of  the  circumstances  accompanying  the  tres- 
pass, and  which  were  a  part  of  the  res  gestce^  may  be  proved 
in  order  to  show  the  temper  and  purposes  with  which  the 
trespass  was  committed,  and  the  extent  of  the  injury.^  If 
special  damage  be  alleged,  such  special  damage  may  also  be 
given  in  evidence.  But  the  opinions  of  witnesses  as  to  what 
amount  in  money  such  damage  should  be  estimated  at,  are 
not  admissible.     That  belongs  to  the  jury.^* 

§  96.  The  time  when  the  trespass  was  committed  need 
not  in  general  be  proved  as  alleged,  the  plaintiff  being  at 
liberty  to  prove  a  trespass  at  any  time  before  action  brought, 
whether  before  or  after  the  day  laid.^  If  the  trespass  be 
laid  on  divers  days  between  two  dates,  the  plaintiff  may 
prove  several  acts  of  trespass  of  the  nature  laid  in  the  dec- 


'  Howe  V.  Wilson,  1  Deuio,  181;  Ricketts  v.  Salwey,  2  Barn.  &  Aid.  360. 
""  Ogden  V.  Gibbons,  2  South.  518;  iwst,  §  598. 
^  Duff  V.  Lyon,  1  E.  D.  Smith,  536. 

*  Terpenning  v.  Gallup,  8  Clarke  Iowa  R.  74 ;  ante,  §  73. 

*  Where  it  appeared  tliat  the  wife  of  the  plaintiff  was  insulted  and  harmed, 
it  was  held  that  although  that  might  he  shown,  yet  that  the  jury  could  not  allow 
damages  for  it,  as  she  might,  by  joining  with  her  husband,  bring  a  separate 
action  for  such  injury  (Cook  v.  Garza,  9  Texas,  358).^ 

In  an  action  of  trespass,  the  certificate  of  damages  of  appraisers  chosen  by  the 
parties  was  held  admissible  in  evidence,  the  appraisers  having  been  previously 
examined  (Crane  v.  Sayre,  1  Ilalst.  110).  In  Daif  v.  Lyon,  supra,  it  was  said 
that  as  the  defendant  cross-examined  the  witness  as  to  the  items  of  his  estimate 
of  damage,  he  thereby  made  the  evidence  his  own.  But  it  was  held  that  the 
question  having  been  admitted  by  the  court  in  the  direct  examination,  the  de- 
fendant had  a  right  to  test  the  correctness  of  the  answer,  after  exception,  by  a 
cross-examination,  without  losing  the  benefit  of  the  exception.  It  was  also  said, 
that  the  testimony  was  that  of  ex[)erts,  and  therefore  admissible.  But  it  was 
held  that  no  such  doctrine  was  applicable  to  evidence  of  this  kind.  •'  I  know 
not,"  said  Ingraham,  J.,  "any  particular  skill  to  be  obtained  by  persons  in  esti- 
mating damages  arising  from  a  tres|)ass,  unless  it  be  fiom  having  been  suiferers 
from  similar  acts  on  former  occasions,  whicii  is  not  the  kind  of  knowledge  re- 
quired from  an  expert." 


92  TEESPASS    AS  A  REMEDY.  §  97. 

laratiou  committed  between  these  two  dates ;  ^  or  at  liis  op- 
tion, may  give  evidence  of  a  single  trespass  committed  at 
some  other  time ;  but  he  cannot  do  both.  ^  And  where  in  an 
action  against  several,  the  plaintiff  fails  in  proving  a  joint 
trespass  by  all  on  the  day  he  first  selects,  he  may  abandon 
that  trespass,  and  prove  a  joint  trespass  at  another  time.  ^* 

§  97.  The  laws  of  one  State  of  the  Union  with  respect  to 
another  State  are  placed  upon  the  same  ground  as  the  laws 
of  a  foreign  country.  Whenever  they  are  brought  in  ques- 
tion, they  must,  in  both  instances,  be  proved  as  other  facts.^ 

'  Myrick  V.  Downer,  18  Vt.  360. 

"  1  Archb.  N.  P.  406;  3  Stark.  Ev.  4th  Am.  ed.  1441;  2  Greenlf.  Ev.  §§  229- 
624;  Pierce  v.  Pickens,  16  Mass.  470;  Powell  v.  Bagg,  15  Gray,  507;  Jorali- 
mon  V.  Pierpont,  Anthon's  N.  P.  R.  59. 

'  Sedley  v.  Sntherlaud.  3  Esp.  202 ;  Tait  v.  Harris,  6  C.  &  P.  73 ;  Roper  v. 
Harper,  5  Scott,  2o0 ;  4  Ring.  N.  C.  20. 

*  Church  V.  Hubbard,  2  Cranch.  187 ;  Consequa  v.  Willings,  1  Pet.  C.  C.  R. 
225;  Brackett  v.  Norton,  4  Conn.  518;  Talbot  v.  Seaman,  1  Cranch,  1;  Brush  v. 
Scribner,  11  Conn.  407. 

*  The  rule  at  common  law  required  that  the  iirst  day  should  be  laid  in  the 
declaration  anterior  to  the  first  wrongful  act,  and  the  plaintiff  would  not  be  per- 
mitted to  give  in  evidence  repeated  acts  of  trespass,  unless  committed  during 
the  time  laid.  But  he  might  prove  a  single  act  of  trespass  upon  the  first  day 
named.  In  such  case,  he  was  confined  to  that  act;  and  the  averment  of  the  sev- 
eral trespasses  after  the  first  day  named,  was  treated  as  surplusage.  In  New 
York,  so  long  as  the  averment  in  continuando  was  relied  upon  and  regarded  as  a 
part  of  the  declaration,  any  evidence  of  acts  not  embraced  within  the  description 
was  inadmissible  on  the  ground  of  variance.  But  now,  under  the  Code,  §§  169, 
170,  which  rejects  all  variance  between  the  allegaticm  in  a  pleading  and  the 
proof,  unless  it  has  actually  misled  a  party  to  his  prejudice,  although  trespasses 
are  laid  with  a  continuando,  and  several  acts  of  trespass  within  the  time  alleged 
are  proved,  the  plaintiff  may  prove  another  act  anterior  to  the  day  stated  as  the 
commencement  of  the  trespass  (Dubois  v.  Beaver,  25  N.  Y.  123).  ''The  old 
rule  was  in  the  highest  degree  technical,  and  without  much  foundation  in  reason. 
That  rule,  where  the  trespasses  were  laid  with  a  continuance,  forbade  the  intro- 
duction of  evidence  of  trespasses,  unless  committed  within  the  space  of  time  laid 
in  the  declaration,  provided  acts  of  trespass  within  that  period  had  been  already 
proved.  But  if  they  had  not  been,  then  it  was  allowable  to  give  evidence  of  an 
act  of  trespass  earlier  than  the  first  day  named  in  the  declaration.  I  think  that 
rule,  so  far  as  it  rests  upon  the  technical  foundation  above  mentioned,  ought  not 
to  be  enforced  under  the  Code — at  least,  as  a  rule  of  unbending  rigor:  but  that 
the  decision  should  turn  upon  the  materiality  of  the  variance  from  the  allegation 
in  the  complaint,  and  the  question  whether  the  opposite  party  has  been  misled 
or  will  be  prejudiced  by  the  admission  of  the  testimony  "  (Relyea  v.  Beaver,  34 
Barb.  547,  per  Hogeboom,  J.).  In  Maine,  the  action  being  for  taking  a  yoke  of 
cattle,  it  was  insisted  that  there  was  a  variance  between  the  allegation  in  the 
writ  and  the  proof  as  to  the  identity  of  the  property  taken — that  the  writ  alleged 
that  the  defendants  took  the  plaintiff's  oxen  July  1st,  while  the  proof  showed 
that  they  were  taken  July  IGth.  But  it  was  held  that  the  precise  time  of  taking 
was  not  material,  if  it  was  within  the  statute  of  limitations  (Allen  v.  Archer,  49 
3Iaine,  346). 


§§  98,  9i).  EvroENCE.  93 

In  Dyer  against  Smith/  which  was  an  action  for  false  im- 
prisonment, the  defendant  was  a  justice  of  the  peace  in  the 
State  of  Rhode  Island,  and,  as  such,  had  rendered  judgment 
by  default  against  the  plaintiff,  issued  an  execution,  and 
caused  the  plaintiff  to  be  committed  to  jail.  The  plaintiff 
claimed  that  the  judgment  was  rendered  after  the  suit  had 
been  discontinued,  and  consequently  was  invalid,  and  af- 
forded no  j^rotection  to  the  defendant.  The  validity  of  th'e 
judgment  depended  upon  the  laws  of  Rhode  Island.  It  was 
held  that  what  those  laws  were,  was  a  question  of  fact  to  be 
proved  before  the  jury,  and  that  the  courts  of  Connecticut 
could  tot  take  notice  of  them. 

§  98.  It  is  competent  for  the  jury  to  consider  the  words 
which  the  defendant  used  subsequent  to  the  trespass,  in  ar- 
riving at  a  conclusion  whether  or  not  he  was  a  joint  tres- 
passer with  those  actually  committing  the  mischief.^  And 
where  a  community  of  design  is  established,  the  acts  of  each 
of  the  parties,  and  their  declarations  at  the  time  of  commit- 
ting the  injury,  are  evidence  against  each.^ 

§  99.  Evidence  is  admissible  which  implicates  only  one 
of  two  defendants  sued  for  a  trespass;*  and  the  plaintiff  is 
bound  to  elect,  before  the  defendants  open  their  case,  against 
which  defendant  he  will  proceed.^  But  after  a  joint  trespass 
is  proved,  the  unconnected  and  distinct  acts  of  some  of  the 
defendants  cannot  be  given  in  evidence.^  If  there  were  a 
number  of  distinct  trespasses,  in  some  of  which  only  a  part 
of  the  defendants  participated,  the  plaintiff  can  recover 
against  all  the  defendants  for  those  acts  only  in  which  all 
were  concerned.'^     Where  U23on  proof  of  a  trespass  affecting 


'  13  Conn.  384. 

"  McLauglilin  v.  Pryor,  4  Scott,  K  R.  655;  1  Car.  &  M.  354;  6  Jur.  374. 

^  Colt  V.  Eves,  12  Conn.  243;  2  Stark.  Ev.  403;  1  East's  PI.  C.  97. 

*  Fox  V.  Jackson,  8  Barb.  355. 

*  Howard  v.  Newton,  2  M.  &  Rob.  509;  see  White  v.  Hill,  9  Jur.  129. 

*  Higby  V.  Williams,  16  Johns.  215. 

'  Myrick  V.  Downer,  supra;  Snodgrass  v.  Hunt,    15   Ind.  274;  M'Carron  v. 
O'Conuell,  7  Cal.  152. 


94  TRESPASS    AS  A  REMEDY.  §§  100,  101, 

different  defendants,  the  counsel  for  the  plaintiff  elects  to 
proceed  as  to  the  trespasses  affecting  two  only,  he  cannot 
afterward  proceed,  even,  as  against  those  defendants,  on  other 
trespasses  affecting  all.^  The  defendants  against  whom  the 
counsel  abandons  the  case,  ought  not,  however,  to  be  acquit- 
ted, until  the  speciab  pleas  in  which  they  have  joined  are 
disposed  of.^  Where  in  a  joint  action  of  trespass  against 
six  defendants,  the  plaintiff'  proved  a  joint  trespass  com- 
mitted by  them  all,  and  then  went  on  to  prove  another 
act"  of  trespass  by  three  of  them,  expecting  to  connect  the 
other  three  with  this  also,  but  failed  in  so  doing,  it  was 
lield  that  the  latter  three  were  entitled  to  be  acquitted 
before  the  defense  w^as  opened,  as  the  plaintiff  must  be 
taken  to  have  elected  to  waive  the  joint  trespass,  and.  to 
have  gone  on  against  those  three  for  the  second  trespass 
only.^ 

§  100.  In  trespass  against  several,  if  any  suffer  judgment 
by  default,  the  plaintiff'  need  only  give  evidence  to  affect  the 
rest ;  and  it  is  for  the  jury  to  determine  whether  the  trespass 
proved  is  the  same  as  that  confessed  ;  but  the  plaintiff  cannot 
be  nonsuited.*  ^' 

§  101.  Where  in  an  action  of  trespass  against  several^ 
there  is  a  joint  plea  of  not  guilty,  and  it  appears  that  there 
are  some  defendants  against  whom  no  evidence  has  been 
given,  they  may  be  discharged,  or  rather  acquitted,  and  ex- 
amined as  witnesses  for  the  other  defendants.^!  A  distinction 

'  Pricbarcl  v.  Campbell,  5  Ind.  494.  ^  Hitchen  v.  Teale,  2  M.  &  Rob.  30. 

^  Wynne  v.  Anderson,  3  Car.  &  P.  596. 

■*  Harris  v.  Butterly,  Cowp.  483;  Weller  v.  Goyton,  1  Burr.  358;  Johnson  v. 
Vutrick,  14  Ind.  216. 

^  Wakeman  v.  Lindsey,  19  L.  J.  Q.  B.  168;  Church  v.  De  Wolf,  2  Root,  282. 

*  In  personal  actions,  the  nonsuit  of  one  is  the  nonsuit  of  all  the  plaintiffs. 
Accordingly  -where  in  an  action  of  trespass,  tliree  of  the  plaintifl's  presented  to 
the  court  a  petition,  stating  that  the  action  was  bronglit  -without  their  consent 
or  kno-wledge,  and  stating  that  they  became  nonsuit,  it  was  held  that  the  non- 
suit extended  to  all  the  plaintiffs  (Caverly  v.  Jones,  3  Fost.  573;  citing  Kimball 
V.  Wilson,  3  N.  Hamp.  101;  Wilson  v.  Mower,  5  Mass.  411;  Webb  v.  Steele,  13 
jSr.  Hamp.  230;  Eastman  v.  Wright.  6  Pick.  316). 

t  In  New  York,  subsequent  to  the  enactment  of  the  statute  providing  that  a 
party  may  be  examined  in  behalf  of  his  coplaintiff  or  codefendant  as  to  any  mat- 


§101.  EVIDENCE.  95 

has  been  inacle  between  a  joint  plea  of  the  general  issue,  and 
a  joint  plea  of  justification.     In  the  latter  case,  if  tlie  plea  is 


ter  in  which  he  is  not  jointly  interested  or  liable  with  such  coplaintifiF  or  code- 
fendant,  and  as  to  which  a  separate  and  not  joint  verdict  or  judgment  shall  be 
rendered  (Laws  of  N.  Y.  of  1851,  p.  90;',  §  397),  in  an  action  for  an  assault  and 
battery,  charged  to  have  been  committed  upon  the  plaintiff  by  five  persons,  the 
judge  at  the  circuit  refused  to  permit  each  defendant  to  testify  for  his  codefend- 
ant.  But  tlie  Court  of  Appeals  (Beal  against  Finch,  11  N.  Y.  128),  in  reversing 
the  judgment,  said  :  "  Though  this  section  is  not  expressed  in  very  clear  terms, 
it  seems  to  me  there  can  be  no  doubt  as  to  its  meaning.  Of  course,  it  can  be  ap- 
plicable only  when  defendants  are  sued  jointly.  There  can  be  codefendants  in 
no  other  case;  and  it  declares  as  to  what  matters  a  defendant,  thus  jointly  sued 
with  others,  may  be  a  witness  for  his  codefendant.  It  is  as  to  a  matter  in  which 
he  is  not  jointly  interested,  and  as  to  which  a  separate  judgment  may  be  ren- 
dered. He  is  a  competent  witness  in  all  cases  where  sued  jointly,  but  only  as  to 
certain  matters.  He  may  prove  that  his  codefendant  was  not  present,  or  if  pres- 
ent, that  he  took  no  part  in  the  assault  and  battery;  or  any  other  separate  de- 
fense of  his  codefendant.  As  to  such  a  matter,  surely  he,  the  witness,  has  no 
interest,  and  cannot  therefore  be  jointly  interested  with  his  codefendant;  and  as 
to  such  matter,  a  verdict  or  judgment  which  is  separate,  and  not  joint,  can  be 
rendered.  *  *  *  In  every  action  for  assault  and  battery,  and  in  all  other 
cases  of  tort,  a  verdict  and  judgment  may  be  rendered  in  favor  of  one  and 
against  another  defendant;  that  is,  in  the  language  of  the  act,  a  verdict  or 
judgment,  separate  and  not  joint,  may  be  rendered.  In  such  an  action,  then,  a 
party  may  be  examined  for  his  codefendant  as  to  any  matter  as  to  which  a  sepa- 
rate and  not  joint  verdict  or  judgment  can  be  rendered,  and  as  to  any  mat- 
ter in  which  he  is  not  jointly  interested  or  liable  with  such  codefendant.  *  *  * 
There  are  many  things  which  the  "witness  excluded  in  this  case  might  have 
proved,  that  would  have  constituted  a  separate  defense  for  the  other  defendants, 
and  as  to  which  the  witness  had  no  interest.  He  might  have  proved  that  the 
other  defendants  were  not  nresent,  or  took  no  part  in  the  rencontre,  or  that  the 
plaintifi"  struck  first,  and  that  they  acted  only  in  self-defense.  Any  of  these 
matters  would  constitute  an  entire  and  perfect  defense  for  the  other  defendants 
for  whom  he  would  have  testified,  and  would  have  been  entirely  distinct  and 
separate  from  the  defense  of  the  witness.  The  witness  might  still  have  been 
found  guilty,  and  the  other  defendants,  on  his  testimony,  might  be  acquitted. 
So,  too,  the  witness  would  have  been  competent  to  testify  as  to  admissions  of 
the  plaintiff,  or  as  to  any  personal  defense  arising  out  of  subsequent  transac- 
tions, such  as  accord  and  satisfaction,  &c.,  if  it  had  been  put  in  issue  by  the 
pleadings.  Upon  the  mere  question  of  mitigation,  where  a  cause  of  action  is 
clearly  made  out  against  all  the  defendants,  I  do  not  see  hov,-  one  defendant  can 
be  a  competent  witness  for  his  codefendant,  for  that  is  a  matter  as  to  which  he 
is  jointly  interested  with  his  codefendant,  and  it  is  therefore  within  the  excep- 
tion made  by  the  statute.  *  *  *  if^  however,  the  case  made  out  against  the 
defendant  who  is  called  as  a  witness  is  a  doubtful  one,  I  see  no  objection  to 
receiving  his  testimony  to  mitigate  damages  for  his  codefendants,  under  proper 
instructions  to  the  jury  to  consider  it  if  they  acquit  the  witness,  and  to  reject  it 
if  they  find  him  guilty."  Denio,  J.,  at  the  close  of  a  long  dissenting  opinion, 
in  the  course  of  which  he  took  strong  ground  against  the  propriety  of  admitting 
parties  to  testify,  said  :  "In  a  large  class  of  litigated  cases,  especially  in  actions 
like  the  one  under  review,  the  parties  come  to  the  trial  with  minds  excited  by 
interest,  prejudice,  and  passion.  A  system  which  shall  invite  them  to  take  the 
stand  as  witnesses  against  each  other,  will  ofl'er  a  premium  to  the  practice  of  dis- 
simulation, craftiness,  and  perjury;  and  will,  in  my  judgment,  inflict  an  injury 
to  public  morals  which  no  fancied  advantage  can,  in  any  degree,  atone  for.  The 
notion  of  limiting  the  application  of  the  testimony  to  the  case  of  the  other  par- 
ties jointly  charged  witli  the  witness,  would  be  found,  in  most  cases,  entirely 


96  TRESPASS    AS  A  REMEDY.  §  101. 

not  supported  as  to  all,  neither  of  the  defendants  can  be  pro- 
tected under  it.^  If  there  be  any,  even  the  slightest  evidence 
against  the  defendant,  he  cannot  be  discharged  before  the 
rest,  but  the  entire  case  must  go  to  the  jury.^  It  is  in  the 
discretion  of  the  judge  to  defer  taking  an  acquittal  of  one  of 
several  defendants  until  all  the  evidence  in  favor  of  the  other 
defendants  has  been  gone  through ;  ^  and  in  England,  this  is 
the  usual  practice.*  Where  it  is  in  the  least  probable  that 
evidence  which  will  be  given  for  the  other  defendants 
may  fix  the  defendant  with  liability,  the  judge  will  not  allow 
his  acquittal  at  the  end  of  the  plaintiffs  case.^  The  court 
may,  in  its  discretion,  direct  the  trial  of  one  of  the  defendants 
first,  when  it  appears  that  there  is  no  substantial  evidence 
against  him ;  and  if  acquitted,  he  may  be  a  witness  for  the 
other  defendants.^  *     An  acquittal  is  allowed  to  avoid  the 

illusory.  The  present  action  furnishes  as  good  an  illustration  of  that  point  as 
any  other.  Here  were  five  defendants  charged  with  a  joint  assault  and  battery 
upon  an  individual.  Testimony  from  indifferent  witnesses  had  made  out  a  prima 
fade  case.  It  is  therefore  probable  that  a  personal  conflict  of  some  character  had 
taken  place,  and  that  the  question  was  as  to  which  party  was  the  aggressor,  the 
plaintiff  or  the  defendants.  Then  it  is  proposed  that  each  defendant  shall  give 
his  account  of  the  matter  on  oath,  not  professedly  as  evidence  in  his  own  behalf, 
but  as  a  witness  for  the  others;  and  the  jury,  sitting  without  the  conveniences 
for  taking  minutes,  and  not  possessing  habits  to  qualify  them  for  making  a  dis- 
criminating analysis  of  the  evidence,  are  expected  to  give  a  verdict  upon  the 
case  of  each  defendant — not  upon  the  general  merits  of  the  conflict,  according 
to  all  the  testimonj' — but  by  applying  to  each  defendant  a  history  of  the  occur- 
rence, of  a  different  ciiaracter,  it  may  be,  from  that  w'hich  is  to  be  applied  to 
each  of  tlie  others.  This  would  be  sufficiently  intolerable  if  the  plaintiff's  ac- 
count was  also  to  be  heard ;  but  he,  unfortunately,  having  no  associate  on  the 
record,  must  submit  to  be  silent,  and  have  the  case  determined  upon  the  oaths 
of  the  very  individuals  whom  he  has  prosecuted  for  an  outrage  upon  his  person." 

'  Schermerhorn  v.  Tripp,  2  Caines,  108;  Drake  v,  Barrymore,  14  Johns.  166. 

^  Brown  v.  Howard,  14  Johns.  119;  Hoar  v.  Clute,  15  lb.  224;  Leach  v. 
Wilkinson,  1  M.  &  Rob.  537. 

'  White  V.  Hill,  14  L.  J.  N.  S.  79;  9  .Jur.  129. 

*  Ibid.  '  Spencer  v.  Harrison,  2  Car.  &  K.  429. 
'  Sawyer  V.  Merrill,  10  Pick.  16;  Dorrell  v.  Johnson,  17  Pick.  263;  but  see 

Dougherty  v.  Dorsey,  4  Bibb.  207. 

*  In  an  action  of  trespass  against  three,  two  of  whom  only  are  served  with 
process,  the  one  not  arrested  is  a  competent  witness  for  the  other  two  (Stockham 
V.  Jones,  10  Johns.  21). 

In  an  action  of  trespass  against  three,  one  of  the  defendants  pleaded  the  gen- 
eral issue.  The  other  defendants,  although  they  appeared  on  the  return  of  the 
writ,  put  in  no  plea.  A  jury  having  been  sworn  to  try  the  issue  joined,  rendered 
a  verdict  for  the  plaintiff.  It  was  held  that  this  was  equivalent  to  the  formal 
entry  of  a  nolle  prosequi  as  to  the  defendants  not  pleading,  or  as  a  verdict  acquit- 
ting them;  and  that  an  entry  on  loose  memoranda  kept  by  the  clerk  of  the 


§  102.  EVIDENCE.  97 

consequences  of  the  improper  joinder  by  tlie  plaintiff  of  de- 
fendants, merely  for  the  purpose  of  excluding  their  testi- 
mony ;  but  the  want  of  evidence  must  be  so  glaring  and  ob- 
vious as  to  afford  strong  grounds  of  belief  that  the  party  was 
arbitrarily  made  a  defendant  to  prevent  his  being  a  witness.^ 

§  102.  Proof  that  the  same  acts  of  alleged  trespass  have 
already  been  put  in  issue  between  the  same  parties,  and  a 
judgment  rendered  thereon  upon  a  trial  on  the  merits,  will 
constitute  a  perfect  defense.^  Thus,  where  the  plaintiff,  in 
his  declaration,  alleged  that  the  defendant  beat  the  plaintiff's 
head  against  the  ground,  and  that  the  plaintiff  brought  an 
action  for  assault  and  battery  for  that,  and  recovered  dam- 
ages, and  that,  since  the  recovery  of  such  damages,  by  reason 
of  the  same  battery,  a  piece  of  the  plaintiff' 's  skull  had  come 
out,  and  the  defendant  pleaded,  in  bar,  the  recovery  men- 
tioned in  the  declaration,  and  averred  it  to  be  for  the  same 
assault  and  battery,  and  the  plaintiff  demurred,  and  it  was 
urged  that  this  subsec^uent  damage  was  a  new  matter,  which 
could  not  be  given  in  evidence  in  the  first  action,  when  it 
was  not  known,  it  was  held  that  the  recovery  of  damages 
in  the  first  action  was  an  absolute  bar  to  any  subsequent 
action  for  the  same  battery.^  ^ 

court,  that  the  jury  were  sworn  in  a  suit  against  the  defendant,  who  pleaded, 
and  others,  could  not  be  treated  as  a  part  of  the  record  or  inconsistent  with  it, 
the  presumption  being  that  the  jury  were  properly  sworn  (Breidenthal  v.  Mc- 
Kenna,  14  Penn.  St.  R.  160). 

A  defendant  in  trespass,  who  has  suffered  judgment  by  default,  is  not  a  com- 
petent witness  for  his  codefendant,  where  the  jury  are  summoned  as  well  to  try 
issues  against  the  one  as  to  assess  the  damages  against  the  other  (Thorpe  v. 
Barber, ""S  C.  B.  675). 

In  an  action  of  trespass  against  three,  who  had  all  jointly,  and  by  one  at- 
torney, pleaded  "not  guilty  by  the  statute."  the  judge  at  Nisi  Prius  would  not, 
on  the  application  of  the  plaintiff's  counsel  just  before  the  jury  were  sworn, 
allow  a  nolle  prosequi  to  be  entered  as  to  one  of  the  defendants,  in  order  that  he 
might  be  called  as  a  witness  for  the  plaintiff.  Neither  would  the  judge,  imme- 
diately after  the  jury  were  sworn,  allow  one  of  the  defendants  to  be  acquitted  on 
the  application  of  the  plaintiff's  counsel,  it  being  stated  by  the  defendant's  coun- 
sel that  he  appeared  for  all  the  defendants  and  objected  to  such  acquittal  (Spen- 
cer V,  Harrison,  3  Car.  &  K.  439). 

'  Brown  v.  Howard,  supra  ;  Bates  v.  Conkling,  10  Wend.  389;  Moon  v.  El- 
dred,  3  Hill,  104,  n.  a. 

*  Emery  v.  Fowler,  39  Maine,  326 ;  Marsh  v.  Pier,  4  Rawle,  288 ;  ante^  %  84. 
'  Fetter  v.  Beale,  1  Salk.  11. 

*  "  The  rule  that  a  judgment  is  conclusive  upon  a  matter  directly  in  issue 

Vol.  I.— 7 


98  TRESPASS    AS  A  REMEDY.  §  103. 

§  103.  The  technical  rule  that  a  judgment  can  only  be 
admitted  between  the  parties  to  the  record  or  their  privies, 
is  modified  so  far  as  to  render  it  admissible  when  the  same 
question  has  been  decided  and  judgment  rendered  between 
persons  responsible  for  the  acts  of  others.  A  familiar  exam- 
ple is  presented  in  suits  against  a  sheriff  or  his  deputy, 
which,  being  determined  upon  the  merits,  against  or  in  favor 
of  one,  will   be  conclusive  upon  the  other.^     So,  likewise, 

upon  a  former  trial  is  sometimes  difficult  of  application.  Any  fact  attempted 
to  be  established  by  evidence,  and  controverted  by  the  adverse  party,  may,  in 
one  sense,  be  said  to  be  in  issue.  As,  for  instance,  in  an  action  of  trespass,  if 
the  defendant  alleges  and  attempts  to  prove  that  he  was  in  another  place  than 
that  where  the  plaintiff's  evidence  would  show  him  to  have  been  at  a  certain 
time,  it  may  be  said  that  this  controverted  fact  is  a  matter  in  issue.  It  may  be 
the  only  matter  put  in  ccmtroversy  by  the  evidence ;  but  it  is  not  the  matter  in 
issue  within  the  meaning  of  the  rule.  It  is  that  matter  upon  which  the  plaintiff 
proceeds  by  his  action,  and  which  the  defendant  controverts  by  his  pleadings, 
which  is  in  issue.  The  pleadings  may  show  specifically  what  this  is,  or  they 
may  not.  If  they  do  not,  the  party  may  adduce  other  evidence  to  show  what 
was  in  issue.  But  facts  offered  in  evidence  to  establish  the  matters  in  issue  are 
not  themselves  in  issue,  within  the  meaning  of  the  rule,  although  they  may  be 
controverted  on  the  trial.  Deeds  which  are  merely  offered  in  evidence  are  not 
in  issue,  even  if  their  authenticity  be  denied.  The  deed  comes  in  controversy 
directly,  in  one  sense  ;  that  is,  in  the  course  taken  by  the  evidence  it  is  direct 
and  essential.  Btit,  in  another  sense,  it  is  incidental  and  collateral.  It  is  not  a 
matter  necessary  of  itself  to  the  finding  of  the  issue.  It  may  be  made  so  by  the 
parties.  There  are  cases  which  conflict  to  some  extent  with  the  principle  we 
have  thus  stated  ;  some  of  them  holding  that,  in  order  to  make  a  record  evidence 
to  conclude  any  matter,  it  should  appear  from  the  record  itself  that  the  matter 
was  in  issue,  and  that  evidence  cannot  be  admitted  that  under  such  a  record  any 
particular  matter  came  in  question  ;  while  others  maintain  that  a  former  judg- 
ment may  be  given  in  evidence,  accompanied  with  such  parol  proof  as  is  necessary 
to  show  the  grounds  upon  which  it  proceeded,  where  such  grounds,  from  the 
form  of  the  issue,  do  not  appear  by  the  record  itself,  provided  that  the  matters 
alleged  to  have  been  passed  upon  be  such  as  might  legitimately  have  been  given 
in  evidence  under  the  issue  joined,  and  such  that,  when  proved  to  have  been 
given  in  evidence,  it  is  manifest  by  the  verdict  and  judgment  that  they  must 
have  been  directly  and  necessarily  in  question,  and  passed  upon  by  the  jury  " 
(King  V.  Chase,  15  N.  Hamp.  9).  In  this  case,  Parker,  C.  J.,  in  referring  to 
Jackson  v.  Wood,  3  Wend.  27;  s.  c.  in  error,  8  Wend.  9,  said:  "While,  on  the 
one  hand,  we  do  not,  with  the  Supreme  Court  (of  New  York),  deem  it  essential 
that  the  record  should  of  itself  show  that  the  matter  was  in  issue,  in  order  to 
make  the  determination  of  it  conclusive,  we  are  of  opinion,  on  the  other,  that 
the  general  principle  laid  down  in  the  Court  of  Errors  is  too  broad  in  holding 
the  judgment  to  be  conclusive  upon  all  matters  which  might  legitimately  have 
been  given  in  evidence,  under  the  issue  joined,  and  such  that  when  proved  to  have 
been  given  in  evidence,  it  is  manifest,  by  the  verdict  and  judgment,  that  they 
must  have  been  directly  and  necessarily  in  question,  and  passed  upon  by  the 
jury,  and  this  must  include  all  matters  which  come  in  question  collaterally  by 
the  evidence  offered,  if  they  were  of  such  a  nature  as  that  it  appears  the  jury 
must  or  should  have  passed  upon  them." 

'  Ferrers  v.  Arden,  Cro.  Eliz.  6G8  ;  Kennersley  v.  Orpe,  Dougl.  517  ;  Strutt  v. 
Bovingdon,  5  Esp.  56  ;  Thurman  v.  Wild,  11  Ad.  &  El.  453;  Rogers  v.  Haines,  3 
Greenlf.  363;  White  v.  Philbrick,  5  lb.  147. 


§§  104,  105.  EVIDENCE.  99 

where  a  juclgmeufc  has  been  rendered  against  the  master  for 
the  trespass  of  his  servant,  it  will  bar  an  action  against  tlie 
servant  for  the  same  trespass.^ 

§  104.  Satisfaction  of  judgment  against  one  of  several 
joint  trespassers  will  be  a  bar  to  an  action  by  the  same 
plaintiff  previously  commenced,  against  another  of  the  joint 
wrong-doers  for  the  same  trespass."^  Where  it  appeared  that 
the  defendant  and  one  Libbey  had  jointly  thrown  down  the 
plaintiff^'s  fence,  for  which  the  present  action  was  brought, 
and  that  afterward  the  plaintiff  brought  another  action  for 
the  same  trespass  against  Libbey,  and  recovered  judgment, 
which  was  satisfied ;  it  was  held  that,  on  the  recovery  by  the 
plaintiff'  of  the  judgment  against  Libbey,  the  claim  for  dam- 
ages was  canceled  as  effectually  as  is  would  have  been  by 
an  instrument  acknowledging  payment,  and  by  a  valid  con- 
tract of  discharge ;  and  that  the  pendency  of  the  action 
against  the  cotrespasser  did  not  change  the  principle.^  The 
court  remarked  that  perhaps  it  was  in  the  power  of  the 
plaintiff  to  have  omitted  to  take  his  judgment  against  Lib- 
bey after  the  verdict,  and  to  have  obtained  a  judgment  in ' 
the  present  action  for  the  same  damages  and  costs ;  but  that 
as  he  had  not  done  so,  the  foundation  of  this  action  was 
taken  away  by  the  plaintiff's  own  acts,  and  no  damage 
could  be  awarded  for  what  had  been  satisfied  by  pay- 
ment. 

§  105,  It  is  scarcely  necessary  to  say  that  a  recovery  in  a 
former  action  apparently  for  the  same  cause,  is  on\j prima 
facie  evidence  that  the  subsequent  demand  has  been  tried ;. 


'  Emery  v.  Fowler,  39  Maine,  74.  *  Mitchell  v.  Libbey,  33  Maine,  74. 

*  A  judgment  against  two  or  more  for  a  joint  trespass  will  not  bar  an  action 
against  one  of  them  for  a  several  trespass  (Davis  v.  Caswell,  50  Maine,  294). 

A  party  may  omit  to  assess  his  damages  on  one  of  several  distinct  counts  for 
acknowledged  distinct  causes  of  action,  and  if  he  does  so.  a  judgment  for  dam- 
ages upon  the  other  causes  of  action  will  not  bar  a  second  suit  for  the  causes  of 
action  for  which  no  damages  were  assessed  (Goodrich  v.  Yale,  8  Allen,  454). 
Per  Dewey,  J.,  citing  Seddon  v.  Tutop,  6  Term  R.  607,  in  which  there  were  two 
distinct  counts,  one  on  a  promissory  note,  and  the  other  for  goods  sold,  set  forth 
in  distinct  counts,  and  not  in  the  least  blended. 


100  TRESPASS    AS  A  EEMEDY.  §§  106,  107. 

and  that  tlie  test  to  apply  is,  whether  the  same  evidence 
will  support  both  actions.^ 

§  106.  Proof  that  the  plaintiff  received  money  in  con- 
sideration of  the  release  of  a  codefendant  is  admissible  in 
mitigation  of  damages."  But  what  is  done  by  way  of  set- 
tlement or  compromise  with  some  of  several  trespassers  is 
not  admissible  for  the  purpose  of  affording  a  measure  or 
rule  of  damages  as  to  the  rest.  "  It  is  quite  as  probable 
that  the  plaintiffs  fixed  the  sums  they  would  insist  upon 
from  the  defendants'  cotrespassers,  w^ith  reference  to  their 
opinion  of  the  degree  of  relative  culpability  to  be  attached 
to  them,  as  with  reference  to  their  own  injury.  The  defend- 
ants being  legally  liable  for  the  whole,  are  not  entitled  to 
complain  that  the  plaintiffs  do  not  pursue  others,  or  have 
collected  less  of  others  than  they  seek  to  recover  of  them. 
It  is  their  good  fortune  that  the  plaintiffs  have  collected  any- 
thing of  others.  If  the  plaintiffs  have  not  been  fully  satis- 
fied for  the  wrong  done  them,  the  defendants  can  only  insist 
that  whatever  their  cotrespassers  have  done  toward  it  shall 
apply  ^ro  tanto^  and  they  are  liable  for  the  balance."  ^ 

§  107.  Whether  the  plaintiff  shall  be  permitted  to  call 
further  witnesses  after  the  defendant  has  rested,  to  give 
merely  cumulative  testimony  to  the  very  facts  alleged  in  the 
complaint,  is  a  matter  w^ithin  the  discretion  of  the  court; 
and  the  exercise  of  that  discretion — unless  in  case  of  very 
palpable  and  gross  injustice- — will  not  be  ground  for 
reversal.^  * 


»  Seddon  v.  Tutpot,  6  Term  R.  607  ;  Kitchen  v.  Campbell,  3  Wils.  304. 

^  Bloss  V.  Plymale,  3  W.  Va.  393.  '  Chamberlin  v.  Murphy,  41  Vt.  110. 

^  Silverman  v.  Foreman,  3  E.  D.  Smith,  322. 

*  In  Silverman  v.  Foreman,  mfro^  which  was  an  action  for  assault  and  bat- 
tery, the  main  ground  upon  which  a  reversal  was  sought,  on  appeal,  was,  that 
after  the  plaintiff  had  rested  the  case .  upon  the  evidence  of  his  witnesses,  who 
testified  to  the  blow,  and  after  the  defendant  had  called  and  examined  witnesses 
to  disprove  the  striking,  the  court  refused  to  permit  the  j^laintiff  to  call  witnesses 
to  prove  that  the  defendant  had  admitted  that  he  struck  the  plaintiff.  It  was 
held  that  in  this  there  was  no  error.  The  court  said:  " Counsel  misapprehend, 
I  think,  the  meaning  of  the  term  rebutting  evidence  in  such  a  case.  It  means 
not  merely  evidence  which  contradicts  the  defendant's  witnesses,  and  corrobo- 


§S  108-110  DAMAGES.  101 


§  108.  If  au  objection  on  account  of  variance  between 
tlie  declaration  and  the  proof  be  not  taken  at  the  trial,  it  will 
be  considered  as  waived.^  A  party  is  at  liberty,  if  he  please, 
to  Avaive  objection  to  irrelevant  testimony,  when  offered  by 
Ms  adversary,  from  the  mouth  of  one  witness,  and  to  object 
to  evidence  of  the  same  facts  when  offered  from  another 
source.  If  irrelevant,  it  is  to  be  excluded  by  the  court, 
when  seasonably  objected  to,  although  like  testimony  may 
have  been  received  because  not  objected  to.^ 

§  109,  When  there  is  any  evidence,  however  slight,  tend- 
ing to  establish  a  material  fact,  the  sufficiency  of  the  evi- 
dence to  establish  the  fact  is  for  the  jury.  But  if  there  be 
no  evidence  tending  to  prove  such  fact,  it  is  the  duty  of  the 
court  to  instruct  the  jury  to  find  for  the  defendant.  And 
where  the  alleged  facts  do  not  in  law  amount  to  a  trespass,  the 
court  should,  on  the  defendant's  motion,  so  instruct  the  jury,^ 

20.  Damages. 

§  110.  As  the  law  presumes  damage  from  every  trespass, 
an  instruction  to  the  jury,  that  if  no  damage  was  done,  they 
may  find  for  the  defendant,  is  error.*  An  officer  in  levying 
upon  machinery  in  a  mill,  in  order  to  detach  it  fi*om  the 
bands  which  united  it  with  the  shafting,  the  bands  not  be- 
longing to  the  owner  of  the  machinery,  cut  instead  of  untying 
the  thongs  by  which  the  bands  were  laced  together.  In  an 
action  of  trespass  against  the  officer,  the  judge  charged  the 
jury,  that  if  they  found  that  the  thongs  were  old,  worn  out, 

rates  those  of  the  plaintiff,  but  evidence  in  denial  of  some  affirmative  case  or 
fact  which  the  defendant  has  endeavored  to  prove.  The  plaintiff  was  strictly 
bound  to  prove  the  allegations  in  liis  conii)laint,  and  give  so  much  testimony  in 
support  of  those  allegations,  that  as  to  them  he  was  willing  to  trust  his  case 
upon  the  proofs  given.  The  defendant  then  took  the  burden  of  rebutting  that 
proof,  and  unless  some  reason  was  assigned  for  deviating  from  the  rule,  the 
court  below  rightly  exercised  their  discretion  in  not  permitting  the  plaintiff  to 
open  his  case  again,  for  the  purpose  of  accumulating  testimony  to  the  very  point 
to  wliich  he  had  already  examined  such  witnesses  as  he  thought  proper." 

'  McConihe  v.  Sawyer,  12  N.  Hamp.  396 ;  Chandler  v.  Walker,  1  Fost.  282. 

"  Dole  V.  Erskine,  37  N.  Hamp.  316. 

»  Crookshank  v.  Kellogg,  8  Blackf.  256. 

*  Atwood  V.  Fricot,  17  Cal.  37. 


102  TRESPASS    AS    A  REMEDY.  §§  111,  112. 

and  nearly  worthless,  unless  the  defendant  cut  them  wantonly, 
he  ouglit  not  to  be  held  liable  for  it ;  and  that  as  the  action 
appeared  to  be  brought  for  the  purpose  of  trying  the  de- 
fendant's right  to  enter  the  mill,  and  to  take  the  machinery, 
lie  would  not  advise  them  to  decide  the  case  on  some  triilinoj 
damage  in  the  above  particulars,  provided  they  found  that 
the  officer  acted  in  good  faith.  It  was  held  tliat  the  foregoing 
instructions  were  erroneous,  the  damage  done  to  the  thongs 
though  small,  being  still  susceptible  of  estimation.^ 

§  111.  For  an  involuntary  trespass,  or  a  trespass  com- 
mitted under  an  honest  mistake  without  intent  to  injure,  the 
damages  should  be  confined  strictly  to  compensation  for  the 
injury  sustained  by  the  plaintift?  But  whether  tlie  de- 
fendant contemplated  or  not  the  actual  result,  he  must  be 
held  to  have  intended  all  the  damages  which  legitimately 
resulted  from  his  illegal  act ;  and  in  estimating  the  amount 
of  such  damages,  all  the  particulars  w^herein  the  plaintifl:'  is 
aggrieved,  may  be  considered,  whether  of  pecuniary  loss,  or 
pain,  or  insult,  or  inconvenience.^  If  the  extent  of  the 
injury  can  be  estimated  in  money,  the  plaintiff  is  entitled  to 
recover  for  the  whole  damage,  without  regard  to  extenuating 
circumstances.  Where  however  by  his  own  act,  he  wantonly 
brings  an  injury  on  himself,  and  the  jury  refuse  to  find  for 
him  to  the  extent  of  his  actual  loss,  a  new  trial  will  not  be 
granted.* 

§  112.  When  the  cause  of  action  is  not  continuing,  the 
prospective,  as  well  as  the  present  injury,  may  be  taken  into 
account,  in  estimating  the  damages.  But  the  future  injury 
must  be  the  necessary  and  natural  result  of  the  wrong  done, 
and  not  the  consequence  of  any  further  wrongful  act  giving 
rise  to  a  fresh  cause  of  action.^ 

'  Fullam  V.  Stearns,  30  Vt.  443. 

=  Allison   V.    Chandler,    11    Mich.    542;  Dibble   v.    Morris,    36    Conn.   416; 
Beecher  v.  Derby  Bridge  &  Ferry  Co.  24  lb.  491. 
°  Allison  \.  Chandler,  n/pra  ;  ante,  §§  14,  16, 
*  Henderson  v.  Syles,  2  Hill,  S.  C.  504. 
'  Richardson  v.  Mellish,  2  Bing.  240;  Fetter  v.  Beal,  1   Ld.   Raym.  839;  s. 


§§  113-115.  DAMAGES.  103 

§  113.  The  plaintiff  may  prove  special  damages  when 
they  are  consequences  of  the  act  committed,  or  when  the 
trespass  causing  the  special  damages,  is  a  part  of  the  entire 
transaction  of  which  the  principal  trespass  was  the  com- 
mencement.-^ Where  special  damages  are  not  alleged  in  the 
declaration,  the  plaintiff'  can  only  prove  such  damages  as  are 
the  necessary  as  well  as  proximate  result,  of  the  act  com- 
plained of ; — but  where  they  are  alleged,  they  may  be  proved 
so  far  as  they  are  the  proximate,  though  not  the  necessary 
result.^ 

§  114.  In  assessing  damages,  the  direct  and  immediate 
consequences  of  the  injurious  act  are  to  be  regarded,  and  not 
remote,  speculative  and  contingent  consequences  which  the 
party  injured  might  easily  have  avoided  by  his  own  act. 
Suppose  a  man  should  enter  his  neighbor's  field  unlawfully 
and  leave  the  gate  open;  if  before  the  owner  know  3  it,  cattle 
enter  and  destroy  the  crop,  the  trespasser  is  responsible. 
But  if  the  owner  sees  the  gate  open,  and  j^asses  it  frequently, 
and  wilfully  and  obstinately,  or  through  gross  negligence, 
leaves  it  open  all  summer,  and  cattle  get  in,  it  is  his  own 
folly.  So,  if  one  throw  a  stone  and  break  a  window,  the 
cost  of  repairing  the  window  is  the  ordinary  measure  of 
damao-e.  But  if  the  owner  suffers  the  window  to  remain 
without  being  repaired,  a  great  length  of  time,  after  notice 
of  the  fact,  and  his  furniture,  or  pictures,  or  other  valuable 
articles  sustain  damage,  or  the  rain  beats  in  and  causes  the 
window  to  decay,  this  damage  would  be  too  remote.'^  * 

§  115.  The  damages  are  not  confined  to  the  mere  pecun- 
iary loss  sustained  by  the  plaintiff.     For  a  wilful  trespass. 


c.  1  Salk.  11;  Caldwell  v.  Murphv,  1  Duer,  233;  aff'cl  11  N.  Y.  416;  Blunt  v. 
McCormick,  3  Denio,  283.  See  Plate  v.  N.  Y.  Cent.  R.  R.  Co.  37  N.  Y.  472 ; 
ante,  §  23 ;  post,  §  278. 

'  Damron  v.  Roach,  4  Humph.  134;  Snively  v.  Fahnestock,  18  Md.  391. 

=  1  Chit.  PI.  Gth  eci.  441 ;  2  Greenlf.  Ev.  §  256;  Dickinson  v.  Boyle,  17  Pick. 
78;  Brown  v.  Cummings,  7  Allen,  507. 

^  Loker  v.  Damon,  17  Pick.  284. 

*  The  jury  cannot  lawfully  allow  interest  on  damages  assessed  by  them 
(Jean  v.  Sandiford,  39  Ala.  317;. 


104  TRESPASS    AS  A  REMEDY.  §  115. 

or  a  trespass  committed  in  reckless  or  wanton  disregard  of 
another's  rights,  or  accomj^anied  l)y  circumstances  of  cruelty 
or  oppression,  or  other  j^articulars  showing  the  existence  of 
malice,  or  a  corrupt  motive,  the  jury  may,  and  ought,  not  only 
to  give  compensation  for  the  injury,  but  also  further  damages 
in  view  of  the  aggravated  character  which  the  trespass  then 
assumes,  usually  called  smart  money,  or  exemplary  damages.^  * 
The  expenses  of  the  suit,  which  the  jury  are  sometimes  ad- 
vised they  may  take  into  consideration  in  cases  of  wanton, 
malicious,  and  culpable  injuries,  are  not  in  fact  strictly  re- 
coverable by  way  of  damages.  They  are  only  to  be  consid- 
ered as  a  reasonable  ground  for  increasing  the  damages  in 


1  Tillotson  Y.  Cheethara,  3  Johns.  56:  Hoyt  v.  Gelston.  13  H).  141;  Wort  v. 
Jenkins,  14  lb.  352 ;  Brizsee  v.  Maybee,  21  Wend.  144 ;  Tifft  v.  Culver,  3  Hill, 
180;  Jay  v.  Almy.  1  Woodbury  &  Minot,  262;  Amer  v.  Longstreth,  10  Barr, 
145;  Wilkins  v.  Gilmore,  2  Humph.  140;  Duncan  v.  Stalcup,  1  Dev.  &  Bat.  440; 
Mitchell  V.  Billinesley,  17  Ala.  391;  Churchill  v.  Watson.  5  Dav,  140;  Ously  v. 
Hardin,  23  111.  40^:3;  Ives  v.  Humphreys,  1  E.  D.  Smith,  196;  Dibble  v.  Morris, 
26  Conn.  416;  Linsley  v.  Bushuell,  15  lb.  236;  Huntley  v.  Bacon,  lb.  267;  Lane 
v.  Wilcox,  55  Barb.  615;  St.  Peters  Church  v.  Beach,  26  Conn.  355;  Hawk  v. 
Eidgway,  33  111.  473;  post,  §  281. 

*  While  it  may  be  conceded  that  there  seems  to  be  a  want  of  legal  force  in 
the  idea  of  compensation  beyond  the  injury,  by  way  of  punishment  for  the  evil 
motives  of  the  tresjjasser,  yet  the  law  is  well  settled  that  it  may  be  given.  There 
are  many  things  constituting  ])roperty  to  an  owner,  the  value  of  which  to  any 
one  else,  would  be  inappreciable ;  such,  for  instance,  as  a  portrait,  the  mere  ])e- 
cuniary  worth  of  which  in  damages  would  not  afibrd  the  owner  an  adequate 
compensation  for  its  destruction  (see  ]S"agle  v.  Mullison,  34  Penn.  St.  R.  48j. 

"There  are  very  respectable  authorities  against  the  right  of  recovery,  in  tres- 
pass, of  anything  more  than  compensation  to  the  plaintiff  for  the  actual  loss  or 
damage  he  has  suffered ;  and  these  authorities  exclude  all  evidence  of  the  inten- 
tention,  motive,  and  character  of  the  defendant's  offense,  as  immaterial.  Other 
nuthorities,  while  they  disclaim  the  right  of  jurors  in  a  civil  suit  to  give  dam- 
ages by  way  of  punishment  or  example,  because  these  belong  to  the  government 
as  a  fine,  instead  of  to  the  party  injured  as  damages,  still  hold  that  the  malice, 
wantonness  and  wilful  cruelty  of  the  defendant's  act,  are  material,  on  the  ground 
that  the  injury  to  the  plaintiff  is  greater  if  he  is  subjected  to  the  insult,  indig- 
nity, and  oppression  of  a  wilful,  premeditated,  and  unprovoked  wrong,  than 
when  subjected  to  a  wrong  which  arose  p^r  infortunium,  from  mistaken  judg- 
ment, or  even  in  the  heat  of  natural  anger.  Still  other  authorities  insist  that  the 
jury  may  allow  damages  by  way  of  punishment,  or  smart  money.  This  matter 
of  damages  in  actions  ex  delicto  has  been  the  subject  of  much  discussion  and 
grave  difference  of  opinion  among  junsts.  But  it  is  clear  that  it  is  of  very 
little  practical  consequence  to  either  plaintiff  or  defendant,  if  damages  are  al- 
lowed according  to  the  wickedness  or  wilfulness  of  the  act,  whether  they  are  al- 
lowed upon  the  ground  that  the  wickedness  and  wilfulness  of  the  act  increases 
or  aggravates  the  injury  to  the  plaintiff,  or  upon  the  ground  that  the  defendant 
should  be  punished  in  damages.  Such  damages,  by  the  great  weight  of  author- 
ity, and  particularly'  of  modern  authority,  are  legitimate  and  matter  of  right  in 
the  discretion  of  the  jury"  (Steele,  J.,  in  Devine  v.  Rand,  38  Vt.  621). 


§  116.  DAMAGES.  105 

order  that  the  plaintiff  may  not  be  impoverished  by  the  cost 
of  the  litigation  necessary  to  obtain  justice.-^  *  The  propriety 
of  their  allowance  ^YOuld  seem  questionable  when  an  action 
is  brought  for  a  tort  which  may  also  be  prosecuted  criminally.^ 
But  every  circumstance  which  affected  the  plaintiff  injuriously 
will  properly  enter  into  the  question  of  damages.^ 

§  116.  Where  a  joint  action  is  brought  against  two  for  a 
trespass,  and  there  is  a  judgment  against  l>oth,  it  must  be  a 
judgment  for  joint  damages.  All  the  legal  consequences  of 
there  being  a  joint  judgment  must  necessarily  follow  ;  one  of 
which  is  that  each  is  liable  for  all  the  damage  which  the 
plaintiff"  has  sustained  l^y  such  trespass,  without  regard  to  dif- 
ferent degrees  and  shades  of  guilt.^  f  In  such  an  action,  there 
was  rendered  the  following  verdict : — "  We,  the  jury,  find  A. 
$150,  and  B.  $100 ;  all  the  costs  to  be  paid  by  A.  and  B. ;  and 
fifty  dollars  damage  to  be  paid  by  A."  It  was  held  that  the  le- 
gal effect  of  the  verdict  was,  that  the  jury  found  $200  damages 
against  A. ;  and  that  a  joint  judgment  must  be  entered  against 
both  defendants  for  that  amount,  and  a  remittitur  he  entered 
as  to  the  $100  found  against  B.^  In  an  action  of  trespass 
against  three,  the  jury  on  one  count  of  the  declaration  found 
two  not  guilty,  and  assessed  the  damage  upon  the  third  at 
six  dollars.  On  another  count,  they  found  the  three  guilty, 
and  assessed   the  damage  at  seven  dollars  and    eighty-three 


'  Williams  v.  Ives,  25  Conn.  568;  Blythe  v.  Tompkins,  2  Abb.  Pr.  R.  468; 
Parsons  v.  Harper,  16  Gratt.  64 ;  post,  §  277. 

*  See  Bradlaugh  v.  Edwards,  11  C.  B.  377. 

^  Nossaman  v.  Rickert,  18Ind.  350;  Humphries  v.  Johnson,  20  lb.  190. 

'Eliot  V.  Allen,  1  C.  B.  18;  Brown  v.  Allen,  4  Esp.  158;  Hill  v.  Goodchild, 
5  Burr.  2790;  Clark  v.  Bales,  15  Ark.  452;  Hair  v.  Little,  28  Ala.  236;  Allen  v. 
Craig,  1  Green,  294 ;  Layman  v.  Heudrix,  1  Ala.  212. 

'  Simpson  v.  Perry,  9  Geo.  508. 

*  In  Ohio,  it  has  been  held  that  where  compensatory  damages  are  allowable 
the  attorney  fees  and  other  necessary  expenses  of  the  plaintiff  may  be  included  in 
the  estimate  of  damasfes  (Cleveland  &c.  R.  R.  Co.  v.  Bartram,  11  Ohio,  N.  S. 
457;  Roberts  v.  Mason,  10  Ohio,  N.  S.  277). 

t  In  case  of  several  defendants,  the  damages  should  be  assessed  according  to 
the  most  culpable  (Berry  v.  Fletcher,  1  Dill.  67).  But  if  the  court  instruct  the 
jury  to  sever  the  damages,  and  assess  what  each  defendant  ought  to  pay,  the  er- 
ror cannot  be  taken  advantage  of  by  a  defendant,  it  not  being  to  his  prejudice 
(Crawford  v.  Morris,  5  Gratt.  90). 


lOG  TRESPASS    AS  A   REMEDY.  §  117. 

cents  against  eacli.  The  judge  told  tlie  jury  that  the  dam- 
ages must  be  joint,  and  directed  a  verdict  to  be  drawn  up  in 
proper  form,  for  the  aggregate  of  twenty-three  dollars  and 
foi*ty-nine  cents  on  the  count  on  which  they  found  against  the 
three  defendants  ;  and  it  was  held  that  there  was  no  error.^  * 

§  117.  If  in  an  action  of  trespass  against  several  defend- 
ants the  jury  assess  several  damages,  the  plaintiff  may  enter 
a  nolle  prosequi  as  to  one  of  the  defendants  and  take  judg- 
ment against  the  others ;  or  he  may  enter  a  remittitur  as  to 
the  lesser  damages;  or  he  may  take  judgment  against  all  the 
defendants  for  the  greater  damages  de  meUorihus  damnis 
without  entering  a  remittitur.  But  if  in  such  case  the  dam- 
ages are  separately  assessed,  and  judgment  is  taken  for  the  , 
whole,  it  w^ill  be  bad  on  error,  and  the  judgment  must  be 
reversed.^  f 

'  Fuller  V.  Chamberlain,  11  Mete.  503. 

=^  2  Tidd's  Pr.  805 ;  Heydon's  Case,  11  Co.  5;  Walsli  v.  Bishop,  Cro.  Cha. 
239,  243;  Rodney  v.  Strode,  Carth.  19_;  Savin  v.  Long,  1  Wils.  30;  HoUey  v. 
Mix,  3  Wend.  350 ;  Halsey  v.  Woodruft",  9  Pick.  555 ;  Johns  v.  Dodsworth,  Cro. 
Car.  192;  Crane  v.  Hummerstone,  Cro.  Jac.  118;  Wallace  v.  Brown,  5  Fost.  216. 

*  Halsey  v.  Woodruff,  9  Pick.  555,  was  an  action  of  trespass  against  A.  and 
B.  for  entering  the  plaintitTs  close  and  tearing  down  his  shop.  The  jury  found 
A.  guilty,  and  assessed  damages  against  him  at  two  dollars;  they  also  found  B. 
guilty,  and  assessed  damages  against  B.  at  seventy-five  dollars.  The  plaintiff 
elected  to  take  judgment  against  both  defendants  for  seventy-five  dollars,  and 
entered  a  remittitur  as  to  the  two  dollars.  The  Supreme  Court  in  holding  that 
judgment  was  rightly  entered,  said  : — "The  i)laintiff  here  alleges  a  joint  trespass. 
The  defendants  plead  severally  that  they  are  not  guilty — of  what  ?  Of  the  joint 
trespass;  and  tliey  are  found  guilty — of  what?  Of  the  same  joint  trespass. 
Damages  are  assessed  against  one  at  seventy-five  dollars.  This  therefore,  by  the 
finding  of  the  jury,  is  the  damage  which  the  plaintifl"  has  sustained,  and  the  law 
draws  the  inference  that  both  are  liable  for  that  sum.  The  inquiry  of  damages, 
though  made  by  the  same  jury,  when  an  issue  in  fact  is  tried,  is  in  some  degree 
collateral  to  the  trial  of  the  issue.  Where  there  is  judgment  on  an  issue  of  law 
alone,  there  must  necessarily  be  a  distinct  inquiry  of  damages,  and  then  the 
question  for  the  jury  is  only  what  damages  has  the  plaintiff  sustained  by  reason 
of  the  trespass  done,  without  regard  to  the  particular  acts  done  by  either  of  the 
defendants.  So  where  the  damages  are  found  by  the  jury,  on  an  issue  in  fact, 
the  sole  inquiry  open  to  them  is,  what  damages  the  plaintifl"  has  sustained,  not, 
who  ought  to  pay  them ;  and  therefore  their  finding  of  separate  damages  is  be- 
yond their  authority,  and  merely  void.  Suppose  in  an  action  against  two  for  a 
joint  trespass,  one  of  the  defendants  demurs  to  the  declaration,  and  the  declara- 
tion is  sustained,  and  the  other  pleads  the  general  issue  which  is  found  against 
him  and  damages  are  assessed ;  judgment  would  be  rendered  that  botli  were 
guilty,  and  execution  would  issue  against  both  for  the  damages  so  found  by  the 
jury.  On  principle,  as  well  as  authority,  the  judgment  entered  in  the  case  before 
us,  was  correct. 

t  Where  in  an  action  of  trespass  against  several  who  plead  jointly,  the  jury 


§§  118,  119.  DAMAGES.  107 

§  118.  The  jury  may  find  one  defendant  guilty  of  a  tres- 
pass at  one  time,  and  the  other  at  another ;  or  one  of  them 
guilty  of  a  part  of  the  trespass,  and  the  other  of  another  part ; 
or  some  guilty  of  the  whole  trespass,  and  the  others  guilty  of 
a  part  only ;  in  all  which  cases  several  damages  may  be  as- 
sessed.^ *  In  Proprietors  of  Kennebec  v.  Boulton,^  the  dec- 
laration charged  three  distinct  trespasses,  but  it  appeared 
that  each  trespass  was  jointly  committed  by  some  of  the 
defendants  only.  It  was  held  that  the  damage  for  each  tres- 
pass was  rightly  assessed  jointly  against  those  of  the  defend- 
ants who  jointly  committed  it,  and  severally  for  the  several 
trespasses ;  and  that  the  plaintiff  was  entitled  to  full  costs,  to 
be  taxed  jointly  against  all  the  defendants,  the  costs  being 
entire,  and  each  of  the  defendants  being  responsible  for  them. 

§  119.  If  actions  are  separately  brought  against  each  of 
several  defendants,  they  may  all  be  pursued  to  final  judg- 
ment, and  the  plaintiff  may  elect  which  of  the  separate 
judgments  he  will  enforce.  But  his  right  of  election  will  not 
be  determined  until  he  sues  out  execution,  or  accepts  satisfac- 
tion of  one  of  the  judgments.  Having,  however,  received  the 
damages  recovered  against  any  one,  and  his  costs  recovered 
against  all,  he  must  be  content  with  that,  as  otherwise  he 
would  receive  more  than  one  satisfaction  for  his  injury.'^  f 

by  mistake  assess  several  damages,  the  plaintiff  may  cure  the  error  by  entering 
a  nolle  prosequi  as  to  all  but  one,  and  taking  judgment  against  him  (Crawford  v. 
Morris,  5  Gratt.  90). 

'Hillv.  Goodchild,  5  Burr.  2790;  Mitchell  v.  Milbank,  6  Term  R.  199; 
Bohun  V.  Taylor,  6  Cowen,  313;  Kempton  v.  Cook,  4  Pick.  305;  Chase  v. 
Lovering,  7  Fost.  295. 

=  4  Mass.  419. 

'  Stone  V.  Matherly,  3  Monr.  136;  Blannv.  Crocheron,  20  Ala.  320;  Sodousky 
V.  M'Gee,  4  J.  J.  Marsh.  2G7;  Livingston  v.  Bishop,  1  Joims.  290;  Knicker- 
backer  V.  Colver,  8  Cowen,  111;  Sheldon  v.  Kibbe,  3  Conn.  214;  Ayer  v.  Ash- 
mead,  31  Conn.  447. 

*  In  Kentucky,  in  an  action  of  trespass,  separate  damages  may  be  assessed 
against  each  defendant,  and  the  judgment  several  against  each  defendant  for  the 
damages  assessed,  and  joint  for  costs  against  all  who  are  found  guilty  (Henry  v. 
Sennett,  3  B.  Mon.  311). 

t  This  was  the  rule  laid  down  in  Sir  John  Heydon's  Case,  11  Co.  5,  wiiere  in 
trespass  against  several  one  appeared  and  pleaded  not  guilty  to  a  declaration 
against  liim,  and  afterwards  another  appeared  and  jjleaded  not  guilty  to  a  like 
declaration,    whereupon  separate  venires  issued,  and  the  issues  were  separately 


108  TRESPASS    AS  A  REMEDY.  §  120. 

§  120.  When  in  an  action  against  several  defendants  they 
are  declared  against  jointly,  they  are  only  liable  for  acts 
jointly  committed,  although  by  agreement  judgment  by  de- 
fault has  been  entered  a2:ainst  all  of  them.^  But  where  all 
of  the  defendants  were  defaulted  by  agreement,  and  the  case 
was  referred  to  an  assessor  to  ascertain  the  damages,  it  was 
held  that  all  were  liable  for  the  entire  damage,  although  the 
evidence  submitted  to  the  assessor  showed  that  one  of  them 
was  not  guilty.^  * 


tried,  and  separate  and  different  damages  assessed,  and  the  court  resolved  that 
the  plaintiff  had  his  election  of  the  different  damages  assessed,  which  should 
bind  all,  and  that  there  should  be  but  one  execution.  The  case  of  Brown  v. 
Wottou,  Moore,  762,  is  opposed  to  this  view.  That  was  an  action  of  trover,  and 
the  defendant  having  pleaded  a  judgment  and  execution  in  behalf  of  the  plaintifl" 
against  one  J.  S.  for  the  same  goods,  the  plea  was  held  good.  The  court  made 
a  distinction  between  the  recovery  of  a  thing  certain  and  of  a  thing  uncertain ; 
and  they  held,  in  the  first  case,  a  recovery  and  execution  against  one  was  no  bar 
against  the  other  without  satisfaction,  but  that  where  the  demand  rested  only  in 
damages,  as  in  trespass,  a  recovery  and  judgment  against  one  was  a  bar  against 
the  other,  for  the  uncertain  demand  having  been  made  certain  l)y  the  judgment, 
the  plaintiff  could  not  resort  to  the  uncertain  demand  again. 

'  Folger  V.  Fields,  12  Cush.  93. 

°  Gardner  v.  Field,  1  Gray,  151. 

*  In  this  case,  the  court  said:  "  The  only  question  open  before  the  assessor 
was  the  amount  of  damages.  Who  were  liable  for  such  trespass  as  might  be 
I^roved  under  the  declaration,  was  settled  by  the  admission  upon  the  record. 
The  plaintiff  was  not  required  to  prove  the  joint  liability  of  the  defendants,  and 
the  defendants  not  at  liberty  to  contest  it.  The  trespass  proved  must  be  taken 
to  be  that  declared  on;  and  his  joint  liability  with  the  other  defendants  Gibbs 
had  admitted.  The  rule  de  meliorihus  damnis  applies,  and  Gibbs  is  liable  for  the 
whole  damage,  not  upon  the  evidence,  but  upon  his  admission." 

In  case  judgment  is  taken  by  default,  a  writ  of  inquiry  must  be  issued  for  the 
summoning  of  a  jury  and  the  assessment  of  the  damages  before  the  sheriff.  The 
plaintiff  must  then  introduce  evidence  as  to  the  extent  of  the  injury;  and  it  is 
the  duty  of  the  sheriff  to  instruct  the  jury  as  to  the  grounds  and  measure  of  com- 
pensation (Chitty  ilrch.  Pr.  Inquiry;  Penny,  in  re,  7  Ell.  &  Bl.  668). 

"  In  this  State  "  (New  Hampshire)  "  we  have  no  practice  like  that  in  England 
and  New  York,  of  issuing  a  writ  of  inquiry  and  summoning  a  special  jury  to 
assess  the  damages;  but  where  a  default  has  been  entered,  the  court  assess  the 
•damages,  unless  for  some  special  reason  they  order  an  inquiry  into  the  damages 
by  the  jury.  Should  that  be  done,  the  matter  would  be  committed  to  one  of 
the  regular  juries  in  attendance  upon  the  court,  by  whom  it  would  be  tried  in 
the  same  manner  as  common  cases,  with  the  exception  that  the  trial  and  verdict 
would  be  confined  merely  to  the  amount  of  damages.  And  where  one  defendant 
is  defaulted  and  another  defends,  there  is  not,  in  point  of  form,  any  inquiry  of 
damages  against  the  one  defaulted;  but  in  practice  the  jury  do,  in  efi'ect,  assess 
the  damages  if  they  find  against  the  other  defendant.  Judgment  is  rendered 
against  both  for  the  amount  of  damages  assessed  by  the  jury.  If  the  one  who 
defends  obtains  a  verdict,  then  damages  are  assessed  on  the  default,  as  if 
there  had  been  originally  but  a  single  defendant  (Eastman,  J.,  in  Chase  v.  Lover- 
ing,  7  Fost.  295,  citing  Bowman  v.  Noyes,  12  N.  Hamp.  307.) 


§  121.  COSTS.  10i> 

21.   Costs. 

§  121.  Where  separate  actions  of  trespass  are  brought 
against  several,  the  plaintiff  may  enter  up  his  costs  in  all  of 
the  suits.^  In  New  York,  in  an  action  against  two  for  wilful 
injury,  if  the  jplaintift^  has  a  verdict  which  carries  costs  against 
one  defendant,  and  the  other  is  acquitted,  the  latter  is  enti- 
tled to  full  costs.  This  results  from  the  fact  that  the  statute 
gives  costs  to  the  defendant  acquitted,  and  prescribes  no  rule 
of  apportionment.  But  w^here  the  defendants  appear  by  the 
same  attorney,  and  all  of  them  are  acquitted,  they  cannot  tax 
separate  bills  of  costs ;  and  the  rule  is  the  same  where,  al- 
though there  is  a  verdict  against  one  defendant,  the  case  is 
such  that  they  both  recover  costs.^  In  Massachusetts,  where 
in  an  action  of  trespass  against  several,  judgment  was  ren- 
dered, in  the  first  instance,  against  all  the  defendants,  but 
afterward,  on  review,  one  of  them  was  acquitted,  it  was  held 
that  he  was  entitled  to  costs  of  travel  and  attendance  for 
himself  and  all  the  witnesses  used  in  the  defense,  both  ou 
the  first  trial  and  review.^  * 


'  Livingston  v.  Bishop,  1  Johns.  290. 

""  Canfield  v.  Gaylord,  12  Wend.  236  ;  The  Albany  &  West  Stockbridge  RR. 
Co.  V.  Cady,  6  Hill,  265 ;  Decker  agst.  Gardiner,  "S  K  Y.  R.  29 ;  K  Y.  Code, 
§  305 ;  post,  §  288. 

^  Durgin  v.  Leighton,  10  Mass.  56. 

*  In  New  Hampshire,  the  act  of  July  2d,  1838,  changed  the  law  to  some  ex- 
tent respecting  costs  in  actions  of  review,  by  providing  that,  in  the  event  of  a 
reduction  of  the  damages,  on  review  brought  by  the  defendant  in  the  original 
action,  he  should  recover  of  the  original  plaintiff  only  so  much  cost  as  should 
equal  the  amount  of  the  reduction  of  the  former  verdict.  Formerly,  in  that 
State,  if  upon  review  the  damages  were  reduced  at  all,  although  merely  nomi- 
nally, the  whole  burden  of  the  costs  of  the  action  of  review  was  thrown  upon 
tlie  original  plaintiff.  Such  was  the  law  upon  the- language  and  legal  interpreta- 
tion of  the  statutes  then  in  force.  Palpable  injustice  was  seen  to  result  from  the 
operation  of  those  statutes,  not  foreseen  or  intended  by  the  Legislature.  The 
rule  above  stated  was  adopted  for  the  prevention  of  such  results,  and  as  a  means 
of  carrying  out  the  real  and  manifest  design  of  the  statutes  upon  this  subject. 
By  the  rule,  if,  upon  the  evidence  before  them,  the  jury  should  find  the  sum  due 
to  the  original  plaintiff  to  be  substantially  less  than  the  original  verdict,  they  were 
bound  to  return  a  verdict  for  such  lesser  sum.  It  was  only  in  case  of  a  merely 
nominal  and  unsubstantial  difference  of  opinion  that  the  jury,  upon  the  review, 
were  entitled  to  enlarge  their  yerdict  by  adopting  that  returned  on  the  original 
trial.  The  effect  of  the  rule  was  to  cast  the  expenses  of  the  litigation  upon  the 
party  reviewing  in  those  cases  in  which  substantial  justice  had  been  done  by  the 
former  verdict.  In  that  way  exact  justice  was  effected.  No  provision  of  law 
was  violated  or  disregarded — the  expenses  of  the  review  were  awarded  only  to  a 


110  TRESPASS    AS  A   REMEDY.  §§  122,  123. 

22.    Verdict. 

§  122.  Technical  nicety  is  not  required  in  the  verdict.  A 
general  finding  of  guilty  and  judgment  "  according  to  the 
verdict "  is  sufficient.^  And  a  verdict  that  the  jury  "  do  not 
think  or  believe  the  defendant  guilty "  will  entitle  him  to 
judgment.^  In  New  Jersey,  where,  in  trespass,  the  jury  on  a 
special  issue  fouiid  a  general  verdict  of  guilty,  it  was  held 
that  the  court  would  adapt  the  verdict  to  the  issue,  and  that 
the  amendment  might  be  made  by  the  court  in  banc,  with- 
out the  postea  being  amended  by  the  circuit  judge.^  Where 
there  was  a  new  assignment,  and  a  general  verdict  was  found 
with  entire  damages,  the  English  Court  of  Exchequer  ap- 
plied the  damages  to  the  issue  on  the  new  assignment.*  * 
That  the  verdict  is  in  the  alternative  will  not  be  a  ground 
for  arrest  of  judgment.^  If  there  be  two  counts,  one  under  a 
statute,  and  the  other  at  common  law,  and  a  general  verdict, 
the  finding  will  be  presumed  to  be  for  single  damages  only.® 

§  123.  When  the  action  is  against  several,  the  jury,  in 
rendering  their  verdict,  have  no  right  to  discriminate  as  to 
the  enormity  of  the  acts  of  each.''^     To  a  count  for  an  expul- 

party  whose  rights  had  been  substantially  prejudiced  by  the  former  finding; 
-while  the  party  moving  a  review,  whose  motive,  to  be  inferred  from  the  result, 
might  well  be  supposed  to  have  been  none  other  than  the  love  of  litigation,  or 
the  worse  one  of  harassing  his  antagonist,  was  compelled  to  bear  the  whole 
burden  of  the  litigation,  as  he  properly  and  justly  should.  Upon  a  retrial  of  an 
action  of  trespass,  upon  a  writ  of  review,  it  was  held  that  the  jury  were  cor- 
rectly instructed  that  if  they  found  the  just  sum  of  damages  due  to  the  original 
plaintifl',  upon  the  proofs  and  the  law  before  them,  to  be  less  than  the  sum  of 
the  former  verdict,  and  the  difference  between  the  sum  thus  found  and  the  former 
verdict  was  merely  trifling  and  inconsiderable,  it  was  competent  for  them  to  re- 
turn a  verdict  for  the  precise  amount  of  the  former  one  (Carpenter  v.  Pierce,  13 
N.  Hamp.  403). 

'  Powers  V.  David,  6  Ala.  9.  ^  Pollard  v.  Otter,  4  Dana,  516. 

'  Phillips  V.  Kent,  3  Zabr.  155.  "  Webb  v.  Allen,  1  Anst.  261. 

"  Johnson  v.  Packer,  1  N.  «&  M.  1.  '  Cooper  v.  Maupin,  6  Mo.  624. 

'  Carney  v.  Reed,  11  Ind.  417. 

*  Where  the  declaration  alleged  that  all  of  the  defendants  committed  the 
trespass,  to  which  the  defendants  all  pleaded  the  general  issue,  and  separate 
pleas  of  justification,  and  the  verdict  was  as  follows:  "We,  the  jury,  find  the 
defendants  guilty  as  the  plaintifl"  in  declaring  has  alleged,  and  assess  the 
damages  sustained  by  the  plaintiff  to  three  hundred  and  tifty  dollars."  It  was 
held  that  the  verdict  was  bad  in  not  covering  the  issues  (Hanly  v.  Levin,  5 
Ohio,  327). 


§  124.  VERDICT.  Ill 

sion,  A.  pleaded  not  guilty,  and  B.  and  C.  paid  twenty  shil- 
lings into  court,  and  pleaded  that  the  plaintiff  had  sustained 
no  greater  damages.  The  jury  wished  to  find  a  verdict  for 
the  plaintiff  against  A.  for  twenty  shillings  beyond  the  sum 
paid  into  court,  and  a  verdict  that  twenty  shillings  as  to  B. 
and  C.  was  sufficient.  It  was  held  that  this  could  not  be 
done ;  that  if  the  jury  thought  that  A.  was  guilty,  and  that 
the  damages  the  plaintiff  had  sustained  exceeded  twenty 
shillings,  they  should  find  a  verdict  against  all  the  defend- 
ants for  so  much  as  the  plaintiff''s  damages  exceeded  that 
sum.^  * 

§  124.  The  rule  in  assumpsit,  that  if  one  defendant  is  not 
found  liable,  the  verdict  will  be  in  favor  of  all  the  defend- 
ants, does  not  hold  in  trespass  ;  ^  and  if,  in  an  action  of  tres- 
pass against  several,  some  are  acquitted  and  others  found 
guilty,  setting  aside  the  verdict  as  to  the  latter,  will  not 
avoid  it  as  to  the  former.'^  Where  in  an  action  against  four, 
the  case  was  left  with  the  jury  as  to  all  the  defendants,  a 
verdict  against  three  assessing  the  damages  was  sustained, 
though  it  did  not  find  the  fourth  not  guilty."*  It  is  for  the 
jury  to  determine  whether  there  was  a  joint  or  only  a  single 
trespass ;  ^  and  a  general  verdict  against  all  will  be  tanta- 
mount to  finding  against  all.*^ 


^  Walker  v.  Woolcott,  8  Car.  &  P.  353.       ^  Gillerson  v.  Small,  45  Maine,  17. 
^  Brown  v.  Burrus,  8  Mo.  26.  ■*  Wilderman  v.  Sandusky,  15  111.  59. 

*  Owens  V.  Derby,  2  Scam.  26.  '  Sutliff  v.  Gilbert.  8  Ham.  405. 

*  In  an  action  of  trespass,  if  the  facts  stated  in  the  declaration  are  estab- 
lished under  the  general  issue,  the  plaintiff  is  entitled  to  a  verdict,  even  though 
the  declaration  might  be  bad  on  demurrer  (Allen  v.  Parkhurst,  10  Vt.  557). 

If  a  declaration  in  trespass  contain  two  counts,  and  the  defendant  plead  to 
one,  and  suffer  judgment  by  default  on  another,  and,  on  trial  of  the  first,  the 
plaintiff  establishes  one  act  of  trespass  which  is  covered  by  the  second  count, 
he  is  not  entitled  to  a  verdict  on  the  first  count  (see  Compere  v.  Hicks,  7  T.  R. 
727). 

In  an  action  of  trespass  against  a  number  of  defendants,  who  severally  pleaded 
not  guilty,  the  jury  found  a  verdict  for  the  plaintifi",  omitting  to  mention  two  of 
the  defendants.  On  motion,  the  verdict  was  set  aside  as  not  conforming  to  the 
issue  (Kilbourn  v.  Waterous,  Kirby,  424). 

In  trespass  against  several  defendants,  and  a  justification,  if  a  verdict  is 
taken  against  all  on  the  plea  of  not  guilty,  and  the  period  during  which  a  joint 
trespass  is  proved  is  covered  by  the  justification, 'the  defendants  are  entitled  to 
a  verdict  (Feltham  v.  Cartwright,  3  Jur.  606). 


112  TRESPASS    AS  A  REMEDY.  §§  125-128^ 

§  125.  The  application  to  a  judge  in  the  course  of  a  cause 
to  direct  a  verdict  for  one  or  more  of  several  defendants  in 
trespass,  is  strictly  to  his  discretion  ;  and  that  discretion  is 
to  be  regulated  not  merely  by  the  fact,  that  at  the  close  of 
the  plaintiff's  case  no  evidence  aj^pears  to  affect  them,  but 
by  tbe  probabilities,  whether  any  such  will  arise  before  the 
whole  evidence  in  the  cause  closes.^  But  it  will  be  error  in 
the  court  to  instruct  the  jury,  on  the  motion  of  the  plaintiff, 
to  acquit  one  of  several  defendants.^ 

§  126.  That  the  judge  asked  the  jury  the  ground  of  their 
verdict,  is  not  matter  of  exception.  It  is  within  his  discre- 
tion to  inquire  of  them  upon  what  facts  their  verdict  is 
based,  for  the  purjoose  of  correctly  stating  the  questions  of 
law,  if  any  should  arise  in  the  case  ;  or  in  order  to  terminate 
the  case,  if  the  particular  facts  found  are  conclusive  as  to  the 
matters  in  issue  between  the  parties.^ 

§  127.  When  the  jury  come  to  the  bar  to  deliver  their 
verdict,  all  or  any  of  them  have  a  right  to  dissent  from  a 
verdict  to  which  they  had  previously  agreed ;  and  they  may 
change  their  mind  and  disagree  to  their  verdict  after  they 
have  pronounced  it  in  open  court,  before  it  is  received  and 
entered  on  the  minutes.'* 

§  128.  It  is  the  absolute  right  of  a  party  to  have  the  jury 
polled  on  their  bringing  in  their  verdict,  w^hether  it  be  sealed 
or  oral,  unless  waived  by  him.^  The  object  of  polling  a  jury 
is  to  ascertain  if  the  verdict  which  has  just  been  presented 
or  announced  by  their  foreman,  is  their  verdict,  or  in  other 
words,  if  they  still  agree  to  it ;  not  to  ask  them  what  their 
verdict  means,  nor  to  question  them  as  to  their  intention  in 
finding  it.     The  clerk,  as  he  calls  over  the  list  of  jurors,  asks 

'  Sowell  V.  Champion,  2  Nev.  &  P.  627;  6  Ad.  &  E.  407. 

^  Gearheart  v.  Smallwood,  5  Mo.  452.  ^  Spoor  v.  Spooner,  12  Mete.  281. 

*  Eoot  V.  Sherwood,  6  Johns.  68. 

*  The  expression  in  Blackley  v.  Sheldon,  7  Johns.  32,  "  if  the  court  please," 
would  seem  to  imply  that  the  polling  of  the  jury  was  in  the  discretion  of  the 
court.  But  in  Fox  v.  Smith,  3  Cowen,  23,  and  .Jackson  ez  clem.  Fink  v.  Hawks, 
2  Wend.  619,  it  was  held  otherwise. 


§  129.  AMENDMENT   AFTER  VERDICT.  113 

them  one  by  one,  or  by  the  poll,  the  question,  "  Is  this  your 
verdict  ?"  This  question  requires  but  one  answer,  and  still 
embraces  all  the  legitimate  objects  of  polling  a  jury.  The 
party  has  no  right  to  dictate  the  manner  in  which  a  jury 
shall  be  polled,  or  to  insist  on  any  other  question  being  put 
to  them  than  the  simple  one  to  ascertain  whether  they  agree 
to  the  verdict  as  presented.^  * 

23.  Amendment  after  verdict. 

§  129.  The  reasonable  rule  in  relation  to  amendments 
after  verdict  is,  that  where  the  verdict  is  for  a  sum  larger 
than  the  ad  damnum^  the  difficulty  may  always  be  remedied 
by  entering  a  remittitur  for  the  excess  ;  that  the  ad  damnum 
may  be  amended  after  verdict  when  it  is  apparent  from  the 
declaration  itself  that  itVas  left  blank,  or  too  small  a  sum  in- 
serted, through  mistake,  or  inadvertence  only ;  that  if  there 
has  been  a  full  and  fair  trial  on  the  merits  appearing  on  the 
face  of  the  declaration,  without  any  knowledge  by  either 
■party  of  the  defect,  judgment  may  be  rendered  without  a 
new  trial ;  but  that  if  it  does  not  appear  that  the  defendant 
had  no  knowledge  of  the  defect,  the  amendment  may  be 
made,  but  a  new  trial  must  be  granted  to  give  him  an  op- 
portunity to  contest  the  enlarged  demand.  That  in  actions 
sounding  in  damages  only,  where  the  plaintiff  deliberately 
estimates  the  injury  to  himself,  and  there  is  only  a  difference 
in  judgment  between  the  jury  and  himself  as  to  the  nature, 
extent,  and  aggravation  of  the  injury,  no  amendment  increas- 


■  Labar  v.  KopUn,  4  N.  Y.  547. 

*  In  this  case,  which  was  an  action  for  assault  and  battery  against  two,  on  the 
return  of  the  jury  with  a  general  verdict  for  the  plaintiff  against  both  defend- 
ants, the  counsel  for  the  defendants  requested  the  judge  that  the  jury  might  be 
polled  by  asking  them  if  that  was  their  verdict  "  against  each  "  and  both  defend- 
ants, which  the  judge  refused  to  permit;  and  it  was  held  by  the  New  York 
Court  of  Appeals  that  such  refusal  was  proper.  Mullett,  J.,  in  delivering  the 
opinion  of  the  court,  said:  "In  the  case  under  consideration,  the  verdict  an- 
nounced was  clearly  against  both  defendants,  and  the  question  proposed  to  be 
put  to  the  jury  was  not  only  unusual,  but  seemed  to  require  an  explanation  of 
the  verdict.  It  was  in  substance  asking  them  whether  they  intended  or  designed 
the  verdict  to  be  against  each  and  both  of  the  defendants.  Such  a  departure 
from  the  established  practice  can  produce  no  good  result,  and  may  lead  to  much 
evil." 

Vol.  I.— 8 


114  TRESPASS    AS    A  REMEDY.  §§  130-32. 

ing  the  ad  daminuTn  to  cover  the  verdict  will  be  allowed, 
and  the  only  remedy  for  an  excessive  ^verdict  is  a  remittitur  ; 
yet  that  the  court,  in  their  discretion,  may  allow  the  ad  dam- 
num to  be  increased  in  any  case  where  after  a  full  and  fair 
trial  upon  the  merits,  the  defendant  claims  and  insists  upon 
an  appeal  or  review.^  * 

24.  Judgment. 

§  130.  The  judgment  cannot  be  rendered  for  any  more 
trespasses  than  are  laid  in  the  declaration.^  If  there  be 
several  issues  on  not  guilty  and  justifications  which  do  not 
cover  the  whole  declaration,  and  a  verdict  is  found  for  the 
plaintiff  on  the  first,  and  for  the  defendant  on  the  last,  the 
judgment  must  be  for  the  plaintiff.^ 

§  131.  If  the  jury  assess  the  damages  against  one  defend- 
ant at  a  certain  sum  and  against  another  at  a  greater  sum, 
the  plaintiff  may  discontinue  as  to  one  defendant,  and  take 
judgment  against  the  other,  each  defendant  being  separately 
liable  for  the  whole.*  But  where  in  an  action  of  trespass 
against  several  there  is  bat  a  single  plea,  and  joint  damages 
are  found,  there  must  be  a  joint  judgment;  if  the  jury  give 
separate  damages,  the  plaintiff  will  be  entitled  to  judgment 
airainst  all  for  the  laro-est  amount  of  damag^es  found  ag-ainst 
any  one  ;  and  if  the  verdict  be  set  aside  as  to  some,  no  judg- 
ment can  be  rendered  against  the  rest,^ 

§  132.  If  two  defendants  in  trespass  suffer  judgment  by 
default,  and  the  plaintiff  execute  writs  of  inquiry  against 
them  separately,  and  take  several  damages  against  them,  it  is 
irregular ;  and  if  the  plaintiff  enter  up  final  judgment  with 

'  Taylor  v.  Jones,  42  N.  Harnp.  25.  •  Gillen  v.  Wilson,  2  Monr.  11. 

^  Knight  V.  Lillo,  2  Wils.  81.  *  Turner  v.  McCarthy,  4  E.  D.  Smith,  247. 

^  Cunningham  v.  Dyer,  2  Monr.  50;  Sabin  v.  Long,  1  Wils.  30;  Pryce  v. 
Foulkes,  4  Burr.  2418;  Halsey  v.  Woodruff,  9  Pick.  555;  Beal  agst.  Finch,  11 
N.  Y.  128. 

*  Where  the  defendant,  justified  in  trespass  under  a  custom  which  could  uot 
be  supported,  and  it  was  found  for  liini,  the  court  set  aside  a  verdict  rendered  in 
his  behalf  on  that  issue,  and  entered  a  verdict  for  the  plaintiff  with  nominal 
damages  (Selby  v.  Robinson,  2  T.  R.  758). 


§§  133-35.  WRIT    OF   ERROR.  115 

those  several  damages  against  tlie  defeuclants,  it  is  erroneous. 
But  the  court  will  permit  the  plaintiff  to  set  aside  his  own 
proceedings  before  final  judgment,  on  payment  of  costs.^ 

§  133.  Where  upon  a  motion  by  the  defendant  for  a  new 
trial  it  appears  that  since  the  term  of  the  court  in  which  the 
verdict  was  rendered  the  defendant  has  died,  the  rule  for  the 
motion  having  been  discharged,  judgment  may  be  entered 
for  the  plaintiff,  as  of  the  term  in  which  the  verdict  was  had.^ 

§  134.  The  want  of  jurisdiction  in  a  court  rendering  a 
judgment  may  be  shown  collaterally  whenever  any  benefit  or 
protection  is  sought  under  the  judgment,  such  want  of  juris- 
diction making  the  judgment  coram  non  judice  and  void.^ 
But  it  is  a  rule  to  which  there  is  no  exception,  that  M^hen  a 
judgment  is  rendered  by  a  court  or  judge  having  jurisdiction 
of  the  subject-matter,  its  regularity  cannot  be  inquired  into 
in  a  collateral  proceeding ;  and  this  rule  applies  to  judgments 
of  justices  of  the  peace.^* 

25.    Writ  of  error. 

§  135.  An  erroneous  proceeding  is  valid  until  reversed 
on  error;  and,  notwithstanding  such  reversal,  it  is  regarded 
as  havina:  been  valid.  It  still  remains  a  record  though  re- 
versed.     It  may  be  pleaded  as  such,  and  constitutes  a  justifi- 


'  Mitchell  V.  Milbank,  6  Term  R.  199. 

*  2  Tidd's  Pr.  846 ;  Tooker  v.  Duke  of  Beaufort,  1  Burr.  146 ;  Trelawney  v. 
Bishop  of  Winchester,  1  Burr.  219;  Toulmin  v.  Anderson,  1  Taunt.  385;  Mac- 
kay  V.  Rhinelander,  1  Johns.  Cas.  408;  Ryghtmyre  v.  Durham,  13  Wend.  245; 
Collins  V.  Prentice,  15  Conn.  423. 

^  Bigelow  V.  Stearns,  19  Johns.  39;  Elliott  v.  Peirsol,  1  Peters,  340 ;  Putnam 
V.  Man,  3  Wend.  202. 

'  Billings  V.  Russell,  23  Penn.  St.  R.  189. 

*  Where  an  action  of  trespass  was  brought  before  a  justice  of  tlie  peace 
against  several,  one  of  whom  was  not  served  with  process,  and  judgment  ren- 
dered against  those  who  had  been  summoned,  and  upon  appeal  to  the  Circuit 
Court  judgment  was  rendered  not  only  against  them,  but  also  against  the  de- 
fendant not  summoned,  it  was  held  that  as  to  him  the  judgment  was  a  nullity 
(Prichard  v.  Campbell,  5  Ind.  494). 

Where,  on  a  writ  of  error  on  a  judgment  for  the  plaintiff,  in  an  action  of  tres- 
pass, the  judgment  was  afJirmed,  the  court  declined  to  allow  interest  on  the 
judgment,  stating  that  where  the  cause  of  action  was  a  tort  it  was  not  customary 
to  allow  interest  (Gelstoa  v.  Hoyt,  13  Johns.  5G1). 


116  TRESPASS   AS  A   REMEDY.  §  136^ 

cation  for  all  things  done  under  its  authority  previous  to  the 
reversal.^  An  erroneous  instruction  may  be  revised  upon 
exceptions,  although  not  specifically  objected  to  before  ver- 
dict, when  the  instruction  obviously  extends  to  the  whole 
grounds  of  defense,  and  is  not  of  such  a  casual  or  incidental 
nature  that  the  defendant  was  in  fault  for  not  calling  atten- 
tion to  its  inaccuracy  before.^  A  judgment  against  several 
may  be  reversed  as  to  one  or  more  of  the  defendants,  and 
affirmed  as  to  the  others.^ 

26.  NeiD  trial. 

§  136.  Where  improper  evidence  is  admitted,  notwith- 
standing it  is  objected  to,  and  the  evidence  is  not  noticed  by 
counsel  on  either  side  in  addressing  the  jury,  or  by  the  court 
in  instructing  them,  as  the  jury  have  the  right  to  regard  it 
as  legal  and  material,  and  it  is  impossible  to  know  that  it 
had  no  effect  upon  their  verdict,  its  admission  is  ground  for 
a  new  trial.*  But  where  evidence  is  given  solely  to  prove  a 
fact  which,  upon  examination,  is  found  not  to  be  material^ 
and  it  has  no  tendency  to  influence  the  minds  of  the  jury 
upon  other  points,  the  verdict  ought  not  to  be  set  aside, 
tbougb  such  evidence  was  not  legally  competent.^  * 


'  Blanchard  v.  Goss,  2  N.  Hamp.  493;  Gorrill  v.  Whittier,  3  lb.  265;  Smith 
V.  Knowlton,  11  lb.  191 ;  Morse  v.  Presby,  25  lb.  303;  Gay  v.  Smith,  38  lb.  171. 

'  Esty  V.  Wilmot,  15  Gray,  168. 

'  Van  Slyck  v.  Snell,  6  Lansini^,  299.  But  see  Whitmore  v.  Delano,  6  N. 
Hamp.  543,  and  Farrell  v.  Calkins,  10  Barb.  348. 

*  Brown  v.  Cummings,  7  Allen,  507. 

'  Buddington  v.  Shearer,  22  Pick.  427. 

*  Where,  in  an  action  of  trespass  against  two,  one  is  acquitted  and  the  other 
found  guilty,  a  new  trial  will  not  be  granted,  in  order  that  the  one  convicted 
may  have  the  other  as  a  witness  (Sawyer  v.  Merrill,  10  Pick.  16).  By  the  court: 
"On  general  principles,  we  doubt  whether,  as  a  matter  of  policy  and  convenience, 
an  application  like  this  ought  be  granted.  The  petitioner  would  put  it  on  the 
ground  of  newly  discovered  evidence,  but  that  is  incorrect.  It  is  the  case  of  an 
incompetent  witness  having  become  competent.  To  grant  the  petition  would  be 
to  make  every  case  of  a  witness'  becoming  competent,  a  ground  for  a  new  trial. 
But  a  decisive  reason  against  granting  this  application  is,  that,  upon  a  new  trial, 
the  petitioner  could  not  avail  himself  of  the  testimony  in  question.  If  the  ver- 
dict is  set  aside,  the  case  must  come  to  trial  just  as  it  did  before  against  both  of 
the  defendants,  and  Bryant  would  be  put  on  his  trial  again,  after  having  been 
acquitted." 

In  Leroux's  case,  cited  6  T.  R.  625,  626,  where  in  an  action  of  trespass  against 


§§  137,  138.  NEW   TRIAL.  117 

§  137.  A  verdict  for  tlie  defendant,  though  contrary  to 
evidence,  will  not  be  set  aside  if  the  plaintiff  was  only  en- 
titled to  nominal  damages.^  In  Burton  v.  Thompson,^  in 
which  a  new  trial  was  denied,  although  it  was  admitted  that 
the  verdict  was  in  direct  opposition  to  the  proof.  Lord  Mans- 
field remarked  that  it  did  not  follow,  by  necessary  conse- 
quence, that  there  must  be  a  new  trial  granted  in  all  cases 
whatever,  where  the  verdict  was  contrary  to  evidence,  where 
there  was  no  real  damage  and  the  injury  trivial  And, 
in  Cady  v.  Fairchild,'^  which  was  a  case  similar  in  its  nature, 
and  presenting  the  same  question,  the  Supreme  Court  of  New 
York  said :  "  This  is  strictly  a  verdict  contrary  to  evidence, 
but  as  no  more  than  nominal  damages  ought  to  have  been 
given,  no  material  injustice  has  been  done  ;  and  we  ought  to 
apply  the  rule  which  has  been  settled  in  regard  to  new 
trials." 

S  138.  In  actions  of  tort,  the  damao-es  must  be  excessive 
and  outrageous  to  Avarrant  a  new  trial  on  that  ground. 
Where  printer's  boys,  who  bad  been  unlawfully  imprisoned 
for  six  hours,  brought  their  several  actions,  and  the  jury  gave 
each  of  them  300^.  damages,  the  court  refused  to  disturb  the 
verdict,  although  it  was  proved  that  each  of  the  plaintiffs 
had  been  generously  fed  during  their  imprisonment.  Pratt, 
C.  J.,  forcibly  expressed  the  principle  governing  this  and 
similar  cases  thus:  "If  the  jury  had  been  confined  by  theii* 
oath  to  consider  the  mere  personal  injury  only,  perhaps  201. 
damages  would  have  been  thought  sufficient.  But  the  small 
injury  done  to  the  plaintiffs,  or  the  inconsiderahleness  of 
their  station  and  rank  in  life,  did  not  appear  to  the  jury  in 
that  striking  light  in  which  the  great  point  of  law  touching 
the  liberty  of  the  subject  did."  ^ 


three,  two  were  acquitted  and  one  convicted,  a  new  trial  was  granted,  but  it  was 
done  witli  the  consent  of  those  who  were  acquitted. 

'  Stephens  v.  Wider,  32  N.  Y.  R.  351. 

'  2  Burr.  664.  '  18  Johns.  129. 

.'  Iluckle  V.  Money,  2  Wils.  205;  Williams  v.  Currie,  1   C.  B.  848;  Fabrigas 
V.  Mostyn,  2W.  Bl.  929;  Allen  v.  Craig,  1  Green,  294. 


118  TRESPASS    AS  A  REMEDY.  §§  139,  140. 

§  139.  Before  tlie  court  can  set  a  verdict  aside  merely 
for  excess  of  damages,  it  ought  to  be  able  to  ascertain  some 
rule  by  which  the  damages  are  to  be  measured,  and  to  which 
the  facts  may  be  applied.  When  the  damages  depend  in 
any  wise  upon  calculation,  the  court  have  some  criterion  by 
which  it  is  enabled  to  correct  any  mistake  of  the  jury. 
But  where  the  court  has  no  such  light  to  guide  it,  the  dam- 
ages depending  upon  mere  sentiment  and  opinion,  it  would 
be  very  dangerous  for  it  to  interfere.^  "  I  should  be  sorry 
to  say,"  remarked  Lord  Mansfield,  "  that  in  cases  of  personal 
torts,  no  new  trial  should  ever  be  granted  for  damages  which 
manifestly  show  the  jury  to  have  been  actuated  by  passion, 
partiality,  or  prejudice.  But  it  is  not  to  be  done  without 
very  strong  grounds  indeed,  and  such  as  carry  internal  evi- 
dence of  intemperance  in  the  minds  of  the  jury.  I  always 
have  felt  that  it  is  extremely  difficult  to  interfere,  and  say 
when  damages  are  too  large.  You  may  take  twenty  juries, 
and  every  one  of  them  will  differ  from  2,000^.  down  to  200^.. 
Nevertheless,  it  is  now  well  acknowledged  in  all  the  courts 
of  Westminster  Hall,  that  if  the  damages  clearly  are  too  large, 
the  courts  will  send  the  iuquiiy  to  another  jury.  Where  they 
interfere,  they  always  go  into  all  the  circumstances,  put 
themselves  in  the  situation  of  the  plaintiff  and  defendant, 
and  examine  closely  into  all  their  conduct."  ^ 

§  140.  Where  it  appears  that  a  person  against  whom 
excessive  damages  have  been  recovered,  acted  in  the  dis- 
charge of  some  duty,  or  in  the  hona  fide  exercise  of  some 
power  or  authority  which  he  supposed  he  possessed,  and 
meant  to  act  right,  but,  by  mistake,  did  wrong,  a  new  trial 
will  be  granted.^  So,  on  the  other  hand,  a  new  trial  will  be 
granted  where  the  plaintiff  does  not  come  into  court  with 
clean  hands,  and  the  circumstance  has  been  overlooked  by 
the  jury,  and  excessive  damages  have  been  given.^     A  judg- 

'  Duberley  v.  Gunning,  4  Term  R.  G51. 

'  Gilbert  v.  Bartenshaw,  Cowp.  230;  Lofft,  771 ;  Britton  v.  South  Wales  R.  R. 
Co.  27  L.  J.  Exch.  355. 

'  Eliot  V.  Allen,  1  C.  B.  18.  "  Duberley  v.  Gunning,  mpra. 


§  141.  NEW  TRIAL.  119 

ment  based  on  the  allowance  of  interest  on  the  damages  as- 
sessed by  the  jury,  will  be  eorrected  by  the  appellate  court 
as  a  clerical  error.^ 

§  141.  Although  a  new  trial  will  sometimes  be  granted 
in  actions  ex  delicto  for  smallness  of  damages,  yet  this  will 
not  be  done  when  there  is  no  standard  for  estimating  the 
damages,  and  the  court  are  not  able  to  lay  down  any  rule 
for  the  guidance  of  the  jury.'^ 


'  Jean  v.  Sandiforcl,  39  Ala.  317. 

=  Stafford's  Case,  cited  4  Term  R.  655. 


BOOK   II. 

TEESPASS  TO  THE  PERSON. 


CHAPTEE   I. 

ASSAULT   AND    BATTERY. 

1.  Meaning  of  assault. 

2.  Battery  defined. 

3.  When  accident  will  excuse. 

4.  Self-defense. 

5.  Defense  of  property. 

6.  Retaking  property. 

7.  Right  of  owner  or  occupier  of  premises  to  eject  persons  therefrom, 

8.  Right  of  innkeeper  to  exclude  or  expel  persons. 

9.  Expulsion  from  religious  meeting. 

10.  Expulsion  from  place  of  public  amusement. 

11.  Forcible  removal  from  public  conveyance. 

12.  Right  of  access  to  railway  depot. 

13.  Seduction  of  daughter  with  violence. 

14.  Chastisement  of  pupil  by  teacher. 

15.  Chastisement  of  servant  by  master. 

16.  Corporal  punishment  by  master  of  vessel. 

17.  Abuse  by  keeper  of  almshouse. 

18.  Personal  violence  by  husband  upon  wife. 

19.  Injury  from  reckless  driving. 

20.  Resisting  arrest. 

21.  Aiding  or  encouraging  assault. 

22.  Place  of  trial. 

23.  Holding  to  bail. 

24.  Parties  to  action. 

25.  Declaration. 

26.  Plea. 

27.  Replication. 

28.  Right  to  begin. 

29.  Burden  of  proof. 

30.  The  proof  must  correspond  with  the  pleadings. 

31.  Proof  of  time. 

32.  Evidence  as  to  possession. 

33.  Proof  of  malice. 

34.  Admissions  and  declarations. 

35.  Evidence  of  provocation. 

36.  Proof  of  mitigating  circumstances. 

37.  Evidence  as  to  character. 

38.  Proof  of  consequences  of  wrongful  act. 

39.  Evidence  as  to  pecuniary  condition  of  party. 

40.  Damages  in  general. 

41.  Damages  from  wounded  feelings. 

42.  Malicious  intent  as  affecting  the  damages. 

43.  Damages  for  assault  upon  child  or  servant. 


§  142.  MEANING    OF  ASSAULT.  121 

44.  Damages  after  conviction  for  public  ofifenae. 

45.  Damages  accruing  after  commencement  of  action. 

46.  Inadequate  or  excessive  damages. 

47.  Costs. 

48.  Verdict. 

1.  Meaning  of  assault.  ' 

§  142.  An  assault  is  an  attempt  or  offer,  against  the  will 
of  another,  to  commit  some  bodily  harm,  accompanied  .by  an 
act  which,  if  not  arrested,  will  result  in  personal  injury.^  * 
Where  a  policeman  prevented  a  member  of  a  society  from 
entering  the  society's  room,  it  was  held  that,  if  the  policeman 
was  wholly  passive,  and  merely  obstructed  the  entrance,  as 
any  inanimate  object  would,  it  was  not  an  assault.^  The 
offense  may,  however,  be  committed  against  a  person  who  is 
not  seen  or  known  to  be  present.  As  if  one  were  wantonly 
to  fire  a  loaded  gun,  and  the  ball  should  pass  through  a  house 
where  people  were,  it  might  be  an  assault  on  all  of  them. 
But  proof  that  A.  entered  a  house  with  force,  having  a  right 
to  the  immediate  possession,  and  removed  the  windows  of  a 
room  in  which  B.  was  sick  in  bed,  without  evidence  that  A, 
knew  that  B.  was  in  the  house,  will  not  support  an  allegation 
that  A.  broke  and  entered  the  house  and  committed  an  as- 
sault on  B.  therein.'^  f 

'  Com.  Dig.  Battery,  C ;  Bac.  Abr.  Assault  and  Battery,  A ;  1  East's  P.  C. 
406;  3  Blk.  Com.  120,  n.  3;  Christopherson  v.  Bare,  11  Q.  B.  473;  Reg.  v.  Mar- 
tin, 9  C.  &  P.  315 ;  R.  v.  Johnson,  34  L.  J.  M.  C.  192;  State  v.  Malcom,  8  Clarke, 
Iowa,  413;  Com.  v.  Ruggles,  6  Allen,  588. 

» Innes  v.  Wylie,  1  Car.  &  K.  357.  '  Header  v.  Stone,  7  Mete.  147. 

*  An  important  object  to  be  attained  by  the  enactment  of  laws  and  the  insti- 
tution of  civilized  society,  is  security  against  unlawful  assaults.  Without  such 
security,  society  loses  most  of  its  value.  Peace,  order  and  domestic  happiness, 
more  precious  than  mere  forms  of  government,  cannot  be  enjoyed  without  the 
sense  of  perfect  security.  We  have  a  right  to  live  in  society  without  being  put 
in  fear  of  personal  harm.  But  it  must  be  a  reasonable  fear  of  which  we  com- 
plain. 

The  Revised  Statutes  of  Maine  define  an  assault  and  battery  thus:  "  Whoever 
unlawfully  attempts  to  strike,  hit,  touch  or  do  any  violence  to  another,  however 
small,  in  a  wanton,  wilful,  angry  or  insulting  manner,  having  an  intention  and 
existing  ability  to  do  some  violence  to  such  person,  shall  be  deemed  guilty  of  an 
assault;  and  if  such  intent  is  carried  into  effect,  he  shall  be  deemed  guilty  of  an 
assault  and  battery"  (ch.  118,  §  28). 

t  In  an  action  by  a  husband  and  wife  for  an  assault  on  the  wife,  the  following 
evidence  was  held  insufficient  to  sustain  the  charge :  That  the  defendant,  having 
bought  the  premises  occupied  by  the  plaintiffs,  and  terminated  the  tenancy, 
peaceably  entered  and  requested  the  plaintiffs  to  leave  and  remove  their  furniture, 


122  ASSAULT  AND  BATTERY.  §  143. 

§  143.  The  following  have  been  held  to  constitute  an  as- 
sault :  Raising  the  fist  in  a  threatening  manner ;  ^  riding  a 
horse  so  near  another  as  to  endanger  him,  and  create  the  be- 
lief in  his  mind  that  it  is  the  intention  of  the  person  on  the 
horse  to  ride  over,  or  to  beat  him ;  ^  ordering  the  plaintiff  to 
leave  the  defendant's  shop,  and,  upon  his  refusal,  sending  for 
some  .men  who  gather  around  the  plaintiff,  tuck  up  their 
sleeves  and  aprons,  and  threaten  to  break  his  neck,  if  he  does 
not  leave ;  ^  the  advancing  of  A.,  in  a  threatening  attitude, 
with  an  intention  to  strike  B.,  so  that  his  blow  would  have 
reached  B.  if  he  had  not  been  stopped,  although,  at  the  par- 
ticular moment  when  A.  was  stopped,  he  was  not  near  enough 
for  his  blow  to  have  taken  effect ;  ^  holding  a  gun  in  a  manner 
indicating  an  intention,  coupled  with  the  ability,  to  shoot 
another ;  ^  but  not  holding  a  cocked  pistol  by  one's  side,  with- 
out any  attempt  to  use  it,  and  saying,  "  I  am  now  ready  for 
you;"®  nor  when  a  gun  is  not  held  as  if  about  to  be  fired, 
and  without  an  intention  to  fire,  although  pointed  in  the 
direction  of  the  other,  and  within  shooting  distance.'^  In  an 
action  for  an  assault,  the  declaration  stated  that  the  defend- 
ant assaulted  the  plaintiff,  "  and  also  then  presented  a  certain 
pistol,  loaded  with  gunpowder,  ball  and  shot,  at  the  plaintiff, 
and  threatened  and  oftered  therewith  to  shoot  the  plaintiff 
and  blow  out  his  brains,"  It  appeared  that  the  parties,  being 
on  board  a  ship,  the  defendant  (who  was  the  captain)  went 
into  his  cabin  and  brought  out  a  pistol,  and  cocked  it,  and 
presented  it  at  the  plaintiff's  head,  saying  that,  if  the  plaintiff' 
was  not  quiet,  he  would  blow  his  brains  out.     It  was  held 


which  they  refused  to  do;  that  he  then  broke  open  an  inner  door,  which  she 
fastened  and  refused  to  open,  took  off  the  doors  and  windows  on  a  bleak  winter's 
day,  took  a  bloodhound  into  the  house,  made  a  great  disturbance  on  the  premises 
for  several  days,  and  would  not  allow  any  food  to  be  taken  into  the  house  (Stearns 
V.  Sampson,  59  Maine,  568). 

'  Murray  v.  Boyne,  42  Mo.  472. 

"  The  State  v.  Sims,  3  Strobh.  137 ;  Mortin  v.  Shoppe,  3  Car.  &  P.  373. 

"  Read  v.  Coker,  22  L.  J.  C.  P.  201 ;  17  Jur.  990. 

*  Stephen  v.  Myers,  4  Car.  &  P.  349;  State  v.  Vannoy,  65  N.  C.  532. 

'  Higginbotham  v.  State,  23  Texas,  574.        °  Warren  v.  State,  33  Texas,  517. 

'  Woodruff  V.  Woodruff,  22  Geo.  237 ;  Farver  v.  State,  43  Ala.  354. 


I 


§  144.  MEANING   OF    ASSAULT.  123 

that,  if  the  defendant,  when  he  presented  the  pistol,  used 
words  showing  that  it  was  not  his  intention  to  slioot  the 
plaintiff,  this  would  not  constitute  an  assault ;  and  that  it 
was  incumbent  on  the  plaintiif  to  substantiate  the  averment 
in  the  declaration  that  the  pistol  was  loaded  with  gunpowder, 
ball  and  shot ;  and  that,  unless  the  jury  were  satisfied  that 
the  pistol  was  loaded,  they  ought  to  find  for  the  defendant.^ 

§  144.  The  last  mentioned  case  can  scarcely  be  deemed  a 
safe  or  reasonable  precedent.  The  court,  doubtless,  yielded 
something  to  the  circumstance  that  the  transaction  occurred 
on  ship  board,  where  much  latitude  of  conduct  on  the  part  of 
the  officers  is  allowed  for  the  preservation  of  necessary  dis- 
cipline.* It  has  been  held  that,  if  a  person  presents  an  un- 
loaded pistol  at  another,  threatens  to  shoot,  and  finally  lowers 
the  pistol,  it  is  an  assault ;  and  that  the  fact  that  it  was  not 
loaded  will  not  excuse  him,  without  also  proving  that  the 
other  person  knew  that  it  was  not  loaded.^  In  Beach  v.  Han- 
cock,^ it  appeared  that  the  plaintiff  and  defendant,  being  en- 
gaged in  a  quarrel,  the  defendant  stepped  aside  and  procured 
a  gun,  which  he  aimed  at  the  plaintiff,  in  an  excited  and 
threatening  manner.  There  was  proof  that  the  defendant 
snapped  the  gun  twice  at  the  plaintiff;  that  the  plaintiff  did 
not  know  whether  the  gun  was  loaded  or  not ;  and  that  the 
gun  was  not  loaded.  The  following  instruction,  given  in  the 
court  below,  was  held  correct :  That  "  the  pointing  of  a  gun, 
in  an  angry  and  threatening  manner,"  at  a  person  three  or  four 
rods  distant,  who  was  ignorant  whether  the  gun  was  loaded 
or  not,  was  an  assault,  tliough  it  should  appear  that  the  gun 
was  not  loaded;  and  that,  whether  or  not  the  gun  was  snap- 
ped, made  no  difference.  Where  several  persons  followed 
another  with  a  gun,  and,  by  threats  and  insults,  put  him  in 
bodily  fear,  it  was  held  that  they  were  guilty  of  an  assault 


»  Blake  v.  Barnard,  9  Car.  &  P.  G26.     See  jwst,  §  204. 

=  State  V.  Cherry,  11  Ired.  475.  =  7  Fost.  323. 

*  In  Blake  v.  Barnard,  supra,  the  plaintiflf  who  was  a  seaman,  had  been 
guiltj'  of  noisy  and  mutinous  conduct.  Instructing  the  jury  to  decide  what  is  an 
assault,  is  error  (Handy  v.  Johnson,  5  Md.  450), 


124  ASSAULT    AND    BATTERY.  §§  145-47. 

upon  him,  altliougli  they  did  not  approach  him  nearer  than 
seventy-five  yards,  and  did  not  point  the  gun  at  him.^ 

§  145.  Abusive  language  alone,  cannot  constitute  an 
assault.  But  threatening  words  accompained  by  an  advance 
in  a  threatening  attitude  may  do  so.^  And  on  the  other 
hand,  words  sometimes  serve  to  explain  a  person's  intent  so 
as  to  prevent  what  would  otherwise  be  deemed  an  assault 
from  amounting  to  such  an  offense ;  as  where  a  man  partly 
drew  a  sword  from  its  scabbard,  and  in  a  threatening  posture 
said,  ''  if  it  were  not  that  it  is  assize  time,,  I  would  run  you 
through  the  body  ;  "  this  was  held  not  to  be  an  assault,  the 
words  explaining  that  the  party  did  not  mean  any  immediate 
injury.^  ^ 

2.  Battery  defined. 

§  146.  A  battery  is  the  wilful  or  careless  touching  the 
person  of  another  by  the  aggressor,  or  by  some  substance 
put  in  motion  by  him.'*  Every  such  touching  is  actionable, 
unless  it  can  be  justified  on  the  ground  of  self-defense,  or 
in  defense  of  one's  property,  or  in  obedience  to  some  legal 
warrant  of  authority,  or  as  the  result  of  inevitable  accident.^ 

§  147.  Placing  the  open  hand  upon  another's  breast,  and 
pushing  him  back,  constitutes  a  battery.^     Where  a  person. 


'  State  V.  Rawles,  65  N.  C.  334. 

»  Keyea  v.  Devlin,  3  E.  D.  Smith,  518;  Shorter  v.  The  People,  2  Comst.  193; 
Stephen  v.  Myers,  4  C.  &  P.  349 ;  ante,  §  3 ;  post,  §  259. 

'  3  Bui.  N.  P.  15;  Vin.  Abr.  Trespass,  A;  3  Blk.  Com.  120;  n.  3;  Bac.  Abr. 
Assault  &  Battery,  B ;  1  East's  P.  C.  400 ;  Com.  v.  Ruggles,  6  Allen,  588. 

*  Ibid. 

"  Griffin  v.  Coleman,  28  L.  J.  Exch.  134;  4  H.  &  N.  265;  Wright  v.  Court, 
4B.  &C.  596. 

'  State  V.  Baker,  65  N.  C.  322. 

*  A  criminal  conviction  for  an  assault,  cannot  be  upheld  where  no  battery 
has  been  committed,  and  none  attempted,  intended,  or  threatened,  by  the  party 
accused.  It  is  indispensal)le  to  the  oftense  that  violence  to  the  person  be  either 
offered,  menaced  or  designed  (The  People  v.  Bransby,  32  N.  Y.  R.  525,  per  Porter, 
J.,  citing,  Rosinski's  Case,  1  Moody's  Cr.  Cas.  19;  Nichol's  Case, Russell  & Rvan, 
130;  Regina  v.  Case,  1  Eng.  L.  &  Eq.  R.  544;  Jackson's  Case,  Russ.  &  Ry.  487; 
Saunder's  Case,  8  C.  «&  P.  265;  Bank's  Case,  34  Eng.  Com.  L.  531;  Meredith's 
Case,  34  Eng.  Com.  L.  539;  Martin's  Case,  38  Eng.  Com.  L.  85;  The  Queen  v. 
Read,  13  London  Jurist,  68;  The  People  v.  Hays,  1  Hill,  351). 


§  148.  BATTERY  DEFINED.  125 

on  a  charge  of  larceny,  was  taken  outside  of  the  town  by  those 
having  charge  of  him,  and  one  of  them,  putting  his  hand 
upon  the  person's  shoulder,  and,  showing  him  a  rope,  told 
him  he  must  confess  the  larceny,  it  was  held  that  they  were 
guilty  of  an  aggravated  trespass.^  It  is  a  battery  for  an  of- 
ficer to  handcuff  a  prisoner  previous  to  his  conviction,  when 
there  is  no  attempt  to  escape,  nor  any  reasonable  ground  to 
fear  a  rescue ;  ^  or  for  parish  officers  to  cut  off  the  hair  of  a 
pauper  in  the  poorhouse  by  force,  and  against  the  will  of  such 
pauper.^  Again,  if  one,  in  trying  to  pass  through  a  crowd, 
rudely  and  violently  push  against  another,  it  will  constitute 
a  battery.*  So,  likewise,  if  one  of  two  persons  who  are  fight- 
ing, unintentionally  strike  a  third,  the  absence  of  intention 
can  only  be  urged  in  mitigation  of  damages,^  unless  such  third 
person  brought  the  injury  upon  himself  by  officiously  and 
improperly  intruding  himself  in  the  way  of  danger.^  The 
same  may  be  said  where  a  person  drives  against  and  violently 
upsets  another  in  his  carriage,  or  knocks  him  down,  or  over- 
turns the  chair  in  which  he  is  seated,  although  he  did  not  in- 
tend to  do  so.''^  And  the  offense  may  be  committed  even  with 
consent :  as  where  two  persons  fight  by  agreement,  although 
the  injured  party  said  he  would  exonerate  the  other ;  ^  or  where 
the  resistance  of  a  female  to  sexual  intercourse  is  overcome  by 
brutal  violence,  and  her  consent  thereto  is  finally  obtained.^  * 
But  if  one  clap  another  on  the  back  by  way  of  joke,  or  in 
friendship,  or  touch  him  to  call  his  attention  to  something,  it 
is  not  a  battery,  unless  done  in  a  hostile  or  insulting  manner.^" 

§  148.  Where  the  law  has  given  an  authority,  it  will  pro- 


'  Stallings  v.  Owens,  51  111.  93.  "  Forde  v.  Skinner,  4  C.  «fe  P.  239. 

'  Cole  V,  Turner,  6  Mod.  149.  *  James  v.  Campbell,  5  C.  «fc  P.  373. 

'  Hojiper  V.  Reeve,  7  Taunt.  698.  '  Cogdell  v.  Yett,  1  Cold.  Tenn,  230. 

'  Bell  V.  Hausley,  3  Jones,  N.  C.  131. 

•  Stout  V.  Wren,  1  Hawks,  420;  Adams  v.  Waggoner,  33  Ind.  531. 
»  Dickey  v.  McDonnell,  41  111.  02. 

'"  Williams  v.   Jones,   Hard.   301 ;  Wiffin  v.  Kincard,   3  B.  &  P.  N.  R.  472 ; 
Coward  v.  Baddelley,  4  H.  &  N.  481 ;  28  L.  J.  Exch.  261. 

*  But  in  such  case,  the  sexual  intercourse  should  not  be  taken  into  considera- 
tion, in  estimating  the  damages  (Dickey  v.  McDonnell,  supra). 


126  ASSAULT    AND    BATTERY.  §§  149,  150. 

tect  persons  from  tlie  abuse  of  the  authority,  by  leaving  the 
one  guilty  of  the  abuse  in  the  same  situation  as  though  he 
had  acted  without  any  authority.  In  Ward's  Case^  it  was 
held  that  a  constable  who  had  a  warrant  of  a  justice  of  the 
peace  to  search  the  house  of  J.  S.  for  stolen  goods,  and  who 
pulled  down  the  sheet  of  a  bed  in  which  there  was  a  woman, 
and  attempted  to  search  under  her  night  clothes,  by  this  in- 
decent abuse  of  his  authority  became  liable  as  a  trespasser. 

3.  When  accident  will  excuse. 

§  149.  Having  heretofore^  defined  the  term  accident,  as  it 
is  employed  in  the  law,  but  little  need  be  said  on  the  subject 
here.  We  may,  however,  be  permitted  to  repeat  that  to  con- 
stitute an  accident  or  casualty,  or  as  the  law  sometimes  terms 
it,  an  inevitable  accident,  it  must  have  been  such  an  occur- 
rence as  the  defendant  could  not  have  avoided  by  the  kind 
and  degree  of  care  which  a  prudent  and  cautious  man  would 
have  used  under  the  circumstances,  A  person  who  should 
have  occasion  to  discharge  a  gun  on  an  open  and  extensive 
plain,  or  in  a  forest,  would  be  required  to  use  less  circum- 
spection and  care,  than  if  he  were  to  do  the  same  thing  in  an 
inhabited  town  or  city.  If  a  horse,  suddenly  frightened  by 
a  flash  of  lightning,  runs  away  with  his  rider,  and  the  latter 
loses  all  power  and  control  over  the  animal,  and  is  unable  to 
guide  him,  the  injuries  inflicted  by  the  ungovernable  horse, 
under  such  circumstances,  are  not  injuries  done  by  the  rider, 
and  the  latter  is,  in  substance,  not  gudty  of  committing 
them.  ® 

§  150.  If  the  act  of  hitting  the  plaintiff  was  unintentional 
on  the  part  of  the  defendant,  and  done  in  the  performance  of 
a  lawful  act,  the  defendant  will  not  be  responsible  unless  it 
was  done  through  the  want  of  the  exercise  of  due  care 
adapted  to  the  exigency  of  the  case.  Where  in  an  action  for 
assault  and  battery,  it  appeared  that  the  two  dogs  of  the 

'  4  Clayton,  44.  «  Ante,  §§  5,  6,  7. 

=  Gibbons  v.  Pepper,  2  Salk.  637 ;  1  Ld.  Raym.  38 ;  4  Mod.  405. 


§  150.  WHEN    ACCIDENT   WILL   EXCUSE.  127 

parties  were  fighting,  and  that  the  defendant,  in  trying  to 
separate  them,  accidentally  hit  the  plaintiff  in  the  eye,  in- 
flicting a  severe  wound,  which  was  the  offense  charged ;  the 
case  involved  the  inquiry  how  far,  and  under  what  qualifica- 
tions, the  party  by  whose  unconscious  act  the  damage  was 
done  was  responsible  for  it.  It  w^as  held  that  if  both  plaintiff' 
and  defendant,  at  the  time  of  the  blow,  were  using  ordinary 
care,  or  if,  at  that  time,  the  defendant  was  using  ordinary 
care  and  the  plaintiff  was  not,  or  if  at  that  time  both  the 
plaintiff  and  defendant  were  not  using  ordinary  care,  the 
plaintiff'  could  not  recover.  ^  *  Castle  v.  Duryea,  ^  was  an  ac- 
tion of  trespass  against  the  colonel  of  a  regiment  of  militia, 
who,  in  the  course  of  the  evolutions  of  his  regiment  at  a  mili- 
tary encampment,  caused  his  men  to  face  toward  spectators 
some  350  feet  distant,  and  then  gave  the  order  to  fire; 
whereupon  the  guns,  supposed  to  be  loaded  only  with  blank 
cartridges,  were  discharged,  and  the  plaintiff  and  her  infant 
in  her  arms,  were  wounded  by  a  musket  ball,  the  former  seri- 
ously, the  latter  fatally.  The  following  instruction  of  the 
judge  was  held  correct :  "  That  the  defendant  was  not  respon- 
sible for  the  injury  complained  of,  if  he  exercised  the  prudent 
care  and  diligence  demanded  by  the  circumstances ;  and  that 
he  was  not  responsible  for  the  negligence  of  those  under  his 
command,  unless  he  made  himself  a  party  to  the  negligence 
by  giving  an  improper  order,  or  by  neglecting  some  precau- 
tion which  prudence  required  him  to  adopt.     That  the  de- 

'  Brown  v.  Kendall,  6  Cusb.  292.  '  32  Barb.  480;  aff'd  2  Keyes,  169. 

*  In  Brown  v.  Kendall,  supra,  the  court  said:  "  We  can  have  no  doubt  that 
the  act  of  the  defendant  in  attempting  to  part  the  fighting  dogs,  one  of  which 
was  his  own,  and  for  the  injurious  acts  of  which  he  might  be  responsible,  was  a 
lawful  and  proper  act,  which  he  might  do  by  proper  and  safe  means.  If  then, 
in  doing  this  act,  using  due  care  and  all  proper  precautions  necessary  to  the  exi- 
gency of  the  case,  to  avoid  hurt  to  others,  in  raising  his  stick  for  that  purpose, 
he  accidentally  hit  tlie  plaintiff  in  the  eye  and  wounded  liim,  this  was  the  result 
of  pure  accident,  or  was  invohintary  and  unavoidable,  and  therefore  the  action 
would  not  lie.  Or  if  the  defendant  was  chargeable  with  some  negligence,  and 
if  the  plaintiff  was  also  chargeable  with  negligence,  we  think  the  plaintiff  cannot 
recover  without  showing  that  the  damage  was  caused  wholly  by  the  act  of  the 
defendant,  and  that  the  plaintiff's  own  negligence  did  not  contribute,  as  an  effi- 
cient cause,  to  produce  it"  (citing  2  Greenlf.  Ev.  §§  85  to  92;  Wakeman  v.  Rob- 
inson, 1  Bing.  213;  Powers  v.  Russell,  13  Pick.  69,  76;  Tourtellot  v.  Rosebrook, 
11  Mete.  460). 


128  ASSAULT    AND    BATERRY.  §§151,152. 

gree  of  care  required  to  avoid  an  injury  was  in  proportion  ta 
the  seriousness  and  magnitude  of  the  consequences  which 
would  probably  ensue  from  the  want  of  it.  That  gunpowder 
and  firearms  were  powerful  agents,  and  it  was  proper  for  the 
jury  to  consider  whether  the  person  using  them  under  the 
circumstances  detailed  in  the  e\ddence,  was  not  bound  to 
exercise  a  high  degree  of  care  and  diligence  to  prevent  injury. 
A  verdict  was  rendered  in  favor  of  the  plaintiff  for  $1,500, 
and  the  appellate  court  declined  to  disturb  it. 

§  151.  The  burden  of  proof  in  cases  of  apparent  accident 
is  on  the  plaintiff  to  show  either  that  the  intention  was  un- 
lawful or  that  the  defendant  was  in  fault.  Where,  therefore, 
A.  threw  a  stick  which  struck  the  plaintiff,  but  it  did  not 
appear  for  what  purpose  the  stick  was  thrown,  it  was  held 
that  it  was  fair  to  conclude  that  the  stick  was  thrown  for  a 
proper  purpose,  and  that  the  striking  of  the  plaintiff  was  an 
accident.  -^ 

4.  Self-defence. 

§  152.  Self-defense  has  been  justly  characterized  as  the 
primary  law  of  nature,  and  is  held  to  excuse  not  only 
breaches  of  the  peace,  but  even  homicide.*     But  the  resist- 


'  Alderson  v.  Waistell,  1  Car.  &  K.  358. 

*  In  State  v.  Hooker,  17  Vt.  658,  -which  was  an  indictment  for  an  assault  and 
battery  upon  a  sheriff,  it  appeared  that  the  sherifl'went  to  the  respondent's  house 
with  legal  process  for  the  purpose  of  serving  it  upon  him,  and  found  the  outer 
door  fastened,  and  that  not  succeeding  in  having  the  door  opened,  he  effected 
an  entrance  by  bursting  off  the  latch.  At  the  trial  the  judge  instructed  the  jury 
that  the  sheriff  had  no  right  to  break  open  the  outer  door,  and  that  for  so  doing 
he  was  a  trespasser;  but  that  if,  after  he  had  entered  the  house,  he  proceeded  to 
arrest  the  respondent,  the  latter  had  no  right  to  resist  him.  The  Supreme  Court, 
in  granting  a  new  trial  for  misdirection,  said:  "It  is  a  familiar  maxim  of  the 
law,  that  '  a  man's  house  is  his  castle,'  and  that  he  has  a  right  to  defend  it. 
How  far  he  may  carry  his  defense,  and  within  what  bounds  it  must  be  restrained, 
is  the  subject  of  inquiry.  A  man  has  a  right  to  defend  himself  against  an  un- 
lawful aggression  to  an  extent  that  shall  make  his  defense  effective,  without 
regard  to  consequences.  Chitty,  in  his  treatise  upon  criminal  law,  lays  down 
the  doctrine  in  its  broadest  sense,  that  the  breaking  the  outer  door  of  a  dwelling- 
house  upon  civil  process  is  unjustifiable.  The  inquiry,  therefore,  is  whether, 
having  thus  done  what  is  unjustifiable,  the  sheriff  may,  by  the  means  and  aid  of 
this  unjustifiable  act,  proceed  to  do  a  lawful  act.  The  officer,  when  he  restrains 
the  debtor  of  his  liberty,  justifies  the  act  by  the  authority  of  the  law,  not  by  any 
natural  right  of  his  own  to  do  so.  It  then  presents  this  strange  anomaly,  that 
an  officer  who  has  no  authority  except  what  is  delegated  to  him  by  the  law  for 


§  152.  SELF-DEFENSE.  129 

ance  to  be  lawful  must  not  exceed  the  bounds  of  mere  de- 
fense and  prevention ;  and  the  force  employed  must  be 
appropriate  in  kind  as  well  as  suitable  in  degree.^  In  an  ac- 
tion for  trespass  on  land,  and  for  assault,  battery  and  wound- 
ing, the  defendants  pleaded  that  the  public  had  a  prescriptive 
right  to  navigate  a  stream ;  that  the  plaintiff  obstructed  it ; 


a  specified  purpose,  can  justify  an  attempt  to  restrain  the  liberty  of  another, 
when  his  purpose  is  aided  and  accomplished  by  an  unjustifiable  act,  and  a  breach 
of  the  very  law  under  which  he  assumes  to  act.  Mr.  Chitty  makes  a  distinction 
between  the  killing  of  an  officer  thus  breaking  the  outer  door,  and  one  not  an 
officer.  But  what  shall  be  the  effect  of  any  resistance  short  of  killing,  he  does 
not  say.  There  are  instances  in  which  an  officer  may  be  resisted,  which  he 
enumerates,  and  they  are— 1.  When  the  warrant  is  defective;  2.  When  it  is  not 
enforced  by  a  proper  officer;  3.  When  it  is  executed  out  of  the  jurisdiction;  4. 
When  the  wrong  person  is  taken  under  it.  So  that  by  this  authority  it  seems 
that  the  person  of  the  officer  is  not  so  sacred  that  all  other  rights  must  yield  and 
be  postponed  to  his.  It  would  by  this  seem,  therefore,  that  in  order  to  throw 
the  shield  of  the  law  over  an  officer  so  as  to  make  it  criminal  for  another  to  resist 
liim  in  what  he  is  attempting  to  do,  certain  requisites  are  necessary.  He  must 
not  only  be  a  legal  and  proper  officer,  but  be  must  have  a  good  and  sufficient 
precept  which  he  is  attempting  to  execute,  and  he  must  be  attempting  to  exe- 
cute it  in  a  legal  way.  After  the  respondent  had  made  the  resistance  for  which 
he  is  indicted,  he  was  arrested  by  the  officer.  Now,  suppose  the  respondent  had 
instituted  proceedings  to  obtain  a  discharge  from  that  arrest,  what  would  have 
been  the  inquiry,  and  what  ought  to  have  been  the  judgment?  Without  answer- 
ing the  question  which  I  have  proposed,  we  can  see  what  has  been  the  inquiry  in 
analogous  cases.  There  are  certain  times  and  occasions  on  which  persons  are 
exempted  from  arrest  on  civil  process,  such  as  witnesses,  parties,  and  jurors  in 
attendance  upon  court,  and  members  of  Parliament,  public  ambassadors  and 
their  servants;  and  when  such  are  arrested,  and  even  committed  on  execution, 
they  are  discharged  from  custody;  and  in  some  cases  it  has  been  held  that  the 
court  had  the  power  to  punish  the  officer  for  arresting  them.  When  a  man  is 
wrongfully  brought  into  a  jurisdiction,  and  is  there  lawfully  arrested,  yet  he 
ought  to  be  discharged,  for  '  no  lawful  thing,  founded  on  a  wrongful  act,  can  be 
supported '  (per  Lord  Holt,  in  11  Mod.  51).  Where  a  person  was  detained  with- 
out a  writ,  and  afterwards,  while  thus  detained,  was  arrested  on  a  writ,  he  was 
discharged  (3  H.  Bl.  29).  All  these  legal  maxims  have  their  correlatives. 
When  A.  unlawfully  attempts  to  arrest  B.,  B.  may  lawfully  resist  him.  What- 
ever I  may  lawfully  enjoy,  I  may  lawfully  defend.  In  the  protection  of  my  own 
rights,  whatever  it  is  unlawful  for  another  to  do,  it  is  lawful  for  me  to  prevent 
him  from  doing.  In  the  present  case,  then,  if  it  was  unlawfid  for  the  officer  to 
break  open  the  house  in  order  to  arrest  the  respondent,  it  was  lawful  for  the 
respondent  to  prevent  him  from  doing  it.  The  breaking  and  arresting  were  de- 
pendent one  upon  the  other,  and  are  not  to  be  discimnected.  The  breaking  was 
for  the  purpose  cf  arresting,  and  the  arresting  was  consequent  upon  the  break- 
ing. It  would  therefore  seem  to  follow  that  if  one  was  unlawful,  the  other  was 
equally  so"  (and  see  Hooker  v.  Smith,  19  Vt.  151). 

■  Mcriarty  v.  Brooks,  6  C.  &.  P.  684;  Keece  v.  Tavlor,  4  Nev.  &  Man.  470; 
1  ITar.  &W.  15;  O'Leary  v.  Rowan.  31  Mo.  117;  Scfibner  v.  Beach,  4  Denio, 
448;  Elliott  v.  Brown,  2  Wend.  497;  Gates  v.  Lounsbury,  20  Johns.  427;  Greg- 
ory V.  Hill,  8  Term  11.  299;  Baldwin  v.  Ilayden,  6  Conn.  453;  Curtis  v.  Carson, 
2N.  Ilamp.  539;  3  BIk.  Com.  3;  1  Hawk.' P.  C.  130;  State  v.  Davis,  7  Jones, 
N.  C.  J^aw  R.  52;  Shorter  v.  Ti»e  People,  2  N.  Y.  R.  193;  Rogers  v.  Waite,  44 
Maine  R.  275 ;  Cora.  v.  Clark,  3  Mete.  23 ;  Greeulf.  Ev.  §  95. 

Vol  I.— 9 


]  30  ASSAULT    AND    BATTERY.  §  153^ 

tliat  while  trying  to  remove  the  obstruction,  the  plaintift" 
assaulted  them,  and  they,  in  self-defense,  necessarily  beat  and 
Avouiided  him  a  little,  employing  only  such,  force  as  was 
necessary  to  remove  the  obstruction.  The  plaintiff  having 
demurred,  it  was  held  that  the  facts  set  forth  in  the  plea 
were  prima  facie  a  justification  of  the  wounding.-'  xVnd 
where  the  plaintiff  was  lying  in  wait  to  execute  threats  of 
personal  violence  upon  the  defendant,  and  actually  gave 
him  a  severe  blow,  it  was  held  that  tlie  defendant  might  law- 
fully pursue  and  lay  hold  of  him,  as  Avell  to  ascertain  the 
assailant  as  to  protect  himself  against  further  injury.^  * 

§  153.  If  a  person  be  attacked  in  such  a  way  as  to  justify 
a  reasonable  belief  that  it  is  made  with  the  design  to  take 
his  life  or  inflict  great  bodily  injury,  he  may  lawfully  kill, 
or  attempt  to  kill  his  assailant,  although  it  subsequently  ap- 
pear that  lie  was  mistaken ;  and  the  question  of  reasonable 
belief  must  be  passed  upon  by  the  jury.  In  Morris  v.  Piatt,* 
it  was  proved  that  the  defendant  wounded  the  plaintiff'  in 
two  places,  by  two  shots  fired  fi^om  a  pistol ;  and  from  the 
nature  of  the  weapon,  and  other  conceded  circumstances,  the 
^vounds  appeared  to  have  been  inflicted  ^vith  a  design  to 
take  the  life  of  the  plaintiff'.  The  defendant  offered  to  prove 
that  he  was  attacked  by  the  plaintiff  and  others,  in  a  manner 
which  indicated  a  design  to  take  his  life — that  "  he  was  in 
great  bodily  peril,  and  in  danger  of  losing  his  life  by  means 
of  the  attack  " — and  that  he  fired  the  pistol  to  protect  his 
life  and  save  himself  from  extreme  bodily  injury.  It  was 
held,  that  if  these  facts  were  proved,  the  defendant  was 
justified  in  the  attempt  to  take  the  life  of  the  plaintift?  f 


'  Brubaker  v.  Paul,  7  Dana,  438.  =  Paige  v.  Smith,  13  Yt.  251. 

=  32  Conn.  75.  '  See  posU  §  164. 

*  A  person  is  not  called  upon  to  flee  to  avoid  an  assault  and  battery  before  he 
is  entitled  to  recover  therefor  (Heady  v.  Wood,  6  Ind.  82). 

t  In  an  action  by  C.  against  T.  the  following  charge  was  held  error: — ''If 
the  jury  find  that  C.  committed  the  first  assault,  yet  that  T.  had  used  more  force 
than  was  necessary  to  defend  himself,  and  in  so  doing  had  shot  C.  when  it  was 
not  necessary  for  him  so  to  do  to  save  himself  from  being  harmed  by  C,  then 
they  must  find  for  C.  (Taylor  v.  Clendening,  4  Kansas,  524). 


§§  154,  155.  SELF-DEFENSE.  131 

§  151.  But  the  restraining  the  employment  of  force  to 
what  is  necessary  to  protect  the  assailed  from  injury,  is,  of 
itself,  enjoining  upon  the  assailed  to  nse  no  violence,  if  self- 
protection  can  be  otherwise  had.  It  is  the  very  imminence  of 
the  danger  of  injury  that  justifies  the  counter  assault ;  and  it  is 
therefore  a  necessary  corollary  that  it  is  the  duty  of  every 
citizen  to  endeavor  to  avoid  the  assault  which  another 
threatens.  The  proposition  might  be  stated  in  stronger 
terms,  viz. : — That  an  assault  cannot  be  justified  as  made  in 
self-defense,  unless  the  danger  of  injury  is  so  manifest  and 
pressing  that  no  other  reasonable  means  of  self-protection 
are  immediately  available.  Human  pride  may  sometimes  be 
wounded  by  prescribing  such  a  rule  of  conduct.  But  a  love 
of  peace,  respect  to  good  order  in  society,  no  less  than  the 
teachings  of  the  highest  code  of  morals,  forbid  that  any  should 
lay  violent  hands  upon  his  neighbor  without  an  endeavor  to 
avoid  his  assault.-^  Where  a  woman  asked  a  man  on  horse- 
back why  he  had  been  talking  about  her,  and  threw  a  stone 
and  stick  at  him,  and  he  dismounted  and  hit  her  on  the  head 
with  a  stick,  he  was  held  guilty  of  assault  and  battery.^ 
And  where  a  person  struck  the  horse  of  another  on  the  head 
with  his  hand,  causing  the  horse  to  step  back  three  or  four 
feet,  it  was  held  that  this  did  not  justify  the  owner  of  the 
horse  in  severely  beating  the  other  and  knocking  him  down 
with  the  butt  of  his  whip.^  '^ 

§  155.  An  act  in  necessary  self-defense  which  injures  an 
innocent  bystander  is  justifiable.     If,  therefore,  a  lighted  fire- 

'  Selw.  K  P.  25;  Keyes  v.  Devlin,  3  E.  D.  Smith,  518;  Mitchell  v.  State,-41 
Geo.  537;  Chambers  v.  Porter,  5  Gold.  Tenn.  273;  Elliott  v.  Brown,  2  Wend.  497. 

'  The  State  v.  Gibson,  10  Ired.  214.  =  Com.  v.  Ford,  5  Gray,  475. 

*  Cockroft,  in  a  scuffle,  ran  his  finger  toward  Smith's  eye,  who  bit  a  joint  off 
from  Cockroft's  finger.  The  question  was,  whether  this  was  a  proper  defense  for 
the  defendant  in  an  action  for  the  mayhem.  Holt,  C.  J.,  said,  "That  a  man 
ought  not,  in  the  case  of  a  small  assault,  to  give  a  violent  or  unsuitable  return, 
but  in  such  a  case  plead  what  is  necessary  for  a  man's  defense,  and  not  who 
struck  first;  for  hitting  a  man  a  little  blow  with  a  little  stick  on  the  shoulder,  is 
not  a  reason  for  him  to  draw  a  sword  and  cut  and  hew  the  other"  (Cockroft  v. 
Smith,  11  Mod.  43). 

Whoever  is  guilty  of  a  breach  of  the  ])eace,  or  of  doing  unnecessary  violence 
to  the  person  of  another,  although  it  may  be  in  the  assertion  of  an  unquestioned 
and  undoubted  right,  is  liable  to  be  i)rosecuted  tlierefor  (Williams,  Ch.  J.,  in 
llodgeden  v.  Hubbard,  18  Vt.  504). 


132  ASSAULT   AND    BATTERY.  §155. 

work  be  thrown  into  a  coacb  full  of  j^assengers,  and  flung 
out  again  in  necessary  selfdefense,  and  falls  against  and 
burns  a  bj^stander,  or  explodes  in  his  face  and  blinds  him, 
the  cul^^able  party  is  he  who  threw  the  burning  material 
into  the  coach,  and  the  person  who  threw  it  out  is  not  liable 
for  the  damage.^  In  the  case  previously  noticed  of  the 
lighted  squib,  ^  which  was  thrown  into  a  market  house,  it  may 
be  observed  that  the  force  which  was  given  to  it  was  spent 
when  it  fell  upon  the  standing,  and  that  it  was  afterward 
twice  23ut  in  motion,  and  in  different  directions,  before  it 
struck  the  plaintiff  and  put  out  his  eye.  But  as  the  throw- 
ing of  the  squib  was  a  mischievous  act  which  was  likely  to 
do  harm  to  some  one,  and  as  the  two  men  who  gave  the  new 
impulses  to  the  missile,  acted  from  terror  and  in  self-defense, 
they  were  held  excused.  In  Morris  v.  Piatt,  ^  which  was  an 
action  for  an  assault  in  which  the  defendant  pleaded  that  he 
acted  in  selfdefense,  the  plaintiff'  in  reply,  denied  that  he 
was  an  assailant,  and  claimed  that  he  was  a  bystander  merely, 
and  requested  the  court  to  charge  the  jury  in  substance,  that 
if  they  so  found,  he  was  entitled  to  recover,  although  they 
should  also  find  that  the  defendant  was  lawfully  defending 
himself  against  his  assailants,  and  that  the  injury  to  the 
plaintiff  was  accidental.  The  request  of  the  plaintiff"  em- 
bodied the  unqualified  proposition  that  a  man  lawfully  exer- 
cising the  right  of  selfdefense,  is  liable  to  third  persons  for 
any  and  all  unintentional,  accidental  injurious  consequences 
which  may  happen  to  them ;  and  the  court  having  so  charged, 
it  was  held  error.* 

'DeGrey,  C.  J.,  S  Wils.  413. 

""  Scott  V.  Shepherd,  3  W.  Blk.  893;  ante,  §  20.     .  =  32  Conn.  75. 

*  In  Morris  v.  Phitt,  siqira,  the  court  said: — "If  the  defendant  had  been  in 
the  act  of  firing  a  pistol  at  an  assailant  in  lawful  self-defense,  and  a  flash  of  light- 
ning had  blinded  him  at  the  instant,  and  diverted  his  aim,  or  an  earthquake 
had  shaken  him  and  produced  the  same  result,  or  if  his  aim  was  perfect,  but  a 
sudden  A-iolent  puff  of  wind  had  diverted  it,  or  the  ball  after  it  ])assed  from  the 
pistol,  and  the  ball  by  reason  of  the  diversion,  liad  hit  the  iilaintiff,  the  acci- 
dent would  have  been  so  effected,  in  part,  by  the  uncoutrollable  and  unexpected 
operations  of  nature,  as  to  be  inevitable  or  absolutely  unavoidable ;  and  there  is 
no  principle  or  authority  which  would  authorize  a  recovery  by  the  plaintiff. 
And  in  the  second  place,  if  while  in  the  act  of  firing  the  pistol  lawfully  at  an  as  ;ail- 
ant,  the  defendant  was  stricken,  or  the  pistol  seized  or  stricken  by  another  assailant, 


§§  150,  157.  SELF-DEFENSE.  133 

§  15G.  Besides  self-protection,  the  right  also  includes  the 
defense  of  those  who  sustain  the  relations  of  husband  and 
wife,  j^areut  and  child,  master  and  servant ;  ^  and  a  person 
may  rightfully  use  reasonable  force  to  protect  a  stranger  from 
unlawful  violence,  and  thus  prevent  a  breach  of  the  peace.^ 
But  the  force  employed  in  such  case,  will  only  be  justifiable 
to  the  extent  that  it  is  necessary  for  the  defense,  and  only 
where  the  person  defended  was  first  attacked  and  was  resist- 
ing his  assailant  wdien  the  party  interfered.^ 

§  157.  The  Cj[uestion  has  sometimes  arisen  whether'  the 
party  first  attacked  in  a  personal  rencounter,  is  entitled  to  an 
action  for  assault  and  battery  if  he  use  so  much  personal 
violence  toward  the  other  party,  exceeding  the  bounds  of  self- 
defense,  as  could  not  be  justified  under  the  plea  of  son  assault 
demesne^  were  he  a  party  defendant  in  a  suit.  The  negative 
was  held  in  an  early  case  in  New  York.*  The  ground  upon 
which  the  decision  was  placed  was,  that  there  could  not  be 


so  that  its  aim  was  unexpectedly  and  uncontrollably  diverted  towards  the 
plaintiff;  or  if,  while  in  the  act  of  tiring  with  a  correct  aim,  the  assailant  sud- 
denly and  unexpectedly  stepped  aside,  and  the  ball  passing  over  the  spot,  hit 
the  plaintiff,  who  till  then  was  invisible,  and  his  presence  unknown  to  the  de- 
fendant; or  if  the  pistol  was  fired,  in  other  respects,  with  all  the  cai'e  which  the 
exigencies  of  the  case  required,  or  the  circumstances  permitted,  the  accident  was, 
wdiat  has  been  correctly  termed  '  unavoidable  under  the  circumstances  ; '  and 
whether  the  defendant  should,  in  such  case,  be  holden  liable  or  not,  is  the  ques- 
tion we  have  in  hand.  For  in  the  third  place,  if  the  act  of  firing  the  pistol  was 
not  lawful,  or  was  an  act  which  the  defendant  was  not  required  by  any  necessity 
or  duty  to  perform,  and  was  attended  with  possible  danger  to  third  persons, 
which  required  of  him  more  than  ordinary  circumspection  and  care,  as  if  he  had 
been  firing  at  a  mark  merely;  or  if  the  act,  though  strictly  lawful  and  necessary, 
was  done  with  wantonness,  negligence,  or  folly,  then,  although  the  wounding 
was  unintentional  and  accidental,  it  is  conceded,  and  undoubtedly  true,  that  the 
defendant  would  be  liable.  In  this  case  the  rule  of  law  claimed  by  the  plaintiff, 
and  given  by  the  court  to  the  jury,  authorized  them  to  find  a  verdict  for  the 
plaintift"  if  they  found  tiie  accident  to  belong  to  the  second  class,  and  to  have 
been  'unavoidable  under  the  circumstances.'  We  have  seen  that  if  the  injury 
had  been  conse(juential,  and  the  form  of  action  case,  the  defendant  would  not 
have  been  liable,  and  the  question  returns  whether  he  can  and  should  be  holden 
lialjle  because  the  injury  was  direct  and  immediate,  and  the  form  of  action  is 
trespass.  I  think  not,  whether  the  decision  of  the  question  be  made  upon  prin- 
ciple or  governed  by  authority." 

■  3  Blk.  Com.  3,  4:  Hill  v.  Rogers,.  3  Clarke,  G7;  Hathaway  v.  Rice,  19  Vt. 
102. 

-  Mellen  v.  Tliompson,  32  Vt.  407.  ^  Obier  v.  Neal,  1  Houston,  Del.  449. 

"  Elliott  V.  Brown,  2  Wend.  497. 

*  That  it  was  tlie  plaintiff's  own  original  assault. 


134  ASSAULT    AND    BATTERY.  §  157 

a  recovery  in  cross  actions  for  the  same  affray,  bnt  that  the 
party  who  first  recovered  might  plead  that  recovery  in  a 
suit  against  himself.  In  New  Hampshire,  however,  a  con- 
trary view  has  been  taken,  the  Supreme  Court  of  that  State 
holding,  in  a  comparatively  recent  case,-^  that  cross  actions 
will  lie  for  the  same  affray  by  the  person  assaulted  for  the 
attack  first  made  upon  him,  and  by  tlie  assailant  for  the  ex- 
cess of  force  used  beyond  what  was  necessary  for  self-de- 
fense.'^ 

'  Dole  V.  Erskine,  3o  N.  Ilamp.  503. 

*  In  Dole  V.  Erskine,  siiprcf,  the  court  said :  "  Up  to  the  time  that  the  excess 
is  used,  the  party  assaulted  is  in  the  right.  Until  he  exceeds  the  bounds  of  self- 
defense  he  has  committed  no  breach  of  the  peace,  and  done  no  act  for  which  he 
is  liable,  while  his  assailant,  up  to  that  time,  is  in  the  wrong,  and  is  liable  for 
his  illegal  acts.  Now  can  this  cause  of  action  which  the  assailed  party  has  for 
the  injury  inflicted  upon  him,  and  which  may  have  been  severe,  be  lost  by  acts  of 
violence  subsequently  committed  by  himself  ?  Can  the  assault  and  battery  which 
the  assailant  himself  has  committed,  be  merged  in  or  set  ofl'  against  the  excessive 
force  used  by  the  assailed  party  ?  Unless  this  be  so,  and  the  party  first  com- 
mencing the  assault  and  inflicting  the  blows,  and  thus  giving  to  the  other  side  a 
cause  of  action,  can  have  the  wrong  thus  done  and  the  cause  of  action  thus 
given  wiped  out  by  the  excessive  castigatiou  which  he  receives  from  the  other 
party,  then  each  party  may  sustain  an  action ;  the  one  that  is  assailed  for  the 
assault  and  battery  first  committed  upon  him,  and  the  assailant  for  the  excess  of 
force  used  upon  him  beyond  what  was  necessary  for  self-defense.  We  think 
that  these  are  not  matters  of  set-off;  that  the  one  cannot  be  merged  in  the  other; 
and  that  each  party  has  been  guilty  of  a  wrong  for  which  he  has  made  himself 
liable  to  the  other.  There  have,  in  effect,  been  two  trespasses  committed ;  the 
one  by  the  assailant  in  commencing  the  assault,  and  the  other  by  the  assailed 
party  in  using  the  excessive  force.  And  upon  principle,  we  do  not  see  why  the 
one  can  be  an  answer  to  the  other,  any  more  than  an  assault  committed  hj  one 
party  on  one  day,  can  be  set  off  against  one  committed  by  the  other  party  on 
another  day.  The  only  difference  would  seem  to  consist  in  the  length  of  time 
that  has  elapsed  between  the  two  trespasses.  In  a  case  where  excessive  force  is 
used,  the  party  using  it  is  innocent  up  to  the  time  that  he  exceeds  the  bounds  of 
self-defense.  When  he  uses  the  excessive  force,  he  then  for  the  first  time  be- 
comes a  trespasser.  And  wherein  consists  the  difference,  except  it  be  that  of 
time,  between  a  trespass  committed  by  him  then,  and  one  committed  by  him  on 
the  same  person  the  day  after  ?  In  Elliott  v.  Brown,  it  is  conceded  that  both 
parties  may  be  indicted,  and  both  be  criminally  punished,  notwithstanding  it 
was  there  held  that  a  civil  action  can  be  maintained  only  against  him  who  has 
been  guilty  of  the  excess.  If  this  be  so,  and  each  party  can  be  criminally  pun- 
ished, then  each  must  have  been  guilty  of  an  assault  and  battery  upon  the 
other;  and  if  thus  guilty,  why  should  not  a  civil  action  be  maintained  by  each  ? 
It  would  seem  that 'the  fact  that  both  are  indictable  shows  that  each  is'  in  the 
wrong  as  to  the  other,  and  that  each  has  a  cause  of  action  against  the  other,  and 
that  such  cause  of  action  may  be  successfully  prosecuted,  unless  one  is  to  be  set 
off  against  the  other.  That  torts  are  not  the  subjects  of  set-oft"  is  entirely  clear. 
AVe  arrive  then  at  the  conclusion  that  the  causes  of  action  existing  in  such  cases 
cannot  be  set  off  the  one  against  the  other,  nor  merged  the  one  in  the  other, 
but  that  each  party  may  maintain  an  action  for  the  injury  received;  the  assailed 
party  fin-  the  assault  first  committed  upon  him,  and  the  assailant  for  the  excess 
above  what  was  necessary  for  self-defense.     This  rule,  it  appears  to  us,  will  do 


§  158.  DEFENSE   OF   PROPERTY.  135 

5.  Defense  of  propertij. 

§  158.  By  the  common  law,  a  man  may  justify  a  battery 
of  a  person  who  endeavors  wrongfulfy  to  dispossess  him  of 
Ms  goods  or  lauds,  or  the  goods  of  another  delivered  to  him 
to  keep.^  The  owner  of  laud  may  re]3el  by  force  any  forcible 
attempt  to  expel  him  ;  and  his  son,  acting  under  his  authority, 
has  the  same  right.'^  And  the  lessee  of  premises  has  the  same 
right  to  employ  force  in  maintaining  the  possession  that  the 
owner  has.'^ "  But  the  mere  suspicion  or  fear  of  an  encroach- 
ment will  not  justify  au  assault.'^  If  a  person  unnecessarily 
stop  a  horse  and  wagon  in  the  highway,  and  there  hinder  the 
overseer  of  highways,  or  the  men  under  him,  while  repairing 
such  highway,  the  overseer  may  use  all  necessary  and  proper 
force  to  remove  him,  if  he  neglects  or  refuses  to  pass  along 
after  being  requested  by  the  overseer  to  do  so.^  In  an  action 
for  assault  and  battery  at  the  funeral  of  a  qhild  of  a  Mr. 
Prince,  it  appeared  that  the  plaintiff  and  defendant  were 
hackmen ;  that  Mr.  Prince  employed  one  Potter  to  superin- 
tend the  funeral  arrangements ;  that  Potter  engaged  the  de- 
fendant, among  others,  to  attend  with  his  hack;  and  that  a 
brother  of  Mr.  Prince,  without  the  knowledge  of  Potter,  had 
engaged  the  plaintiff  to  attend  the  funeral  with  his  carriage. 
The  plaintiff  and  defendant  ])oth  attended   with  their  car- 


more  justice  to  the  parties  and  more  credit  to  the  hiw  than  the  other;  for  by  it, 
•the  party  who  has  commenced  tlie  assault,  and  who  has  been  tlie  moving  cause 
of  the  difficulty,  is  made  to  answer  in  money,  instead  of  having  his  assault 
merged  in  the  one  which  lie  has  provoked,  and  which  has  been  inflicted  upon 
him  by  his  antagonist." 

'  3  Blk.  Com.  4;  1  Esp.  Dig.  3U;  1  Hawk.  P.  C.  130;  Gates  v.  Lounsbury, 
20  Johns.  427;  Gregory  v.  Hill,  8  Term  R.  299;  Alderson  v.  Waistell.  1  Car.  & 
K.  358. 

=  Tribblc  v.  Frame,  7  J.  J.  Marsh.  599,  G17. 

'  Corey  v.  The  People,  45  Barb.  262.  "  McAuley  v.  State,  3  Iowa,  435. 

'"  Bull  V.  Colton,  22  Barb.  04. 

*  Where  A.  gives  B.  verlial  permission  "to  dig  and  carry  away  ore,"  and  B. 
assigns  the  license  to  C,  who  enters  torcil»ly  into  the  premises  of  A.,  the  latter 
being  at  the  time  the  owner  of  the  freehold,  and  warning  C.  not  to  attempt  to 
enter,  C.  is  a  trespasser,  and  may  be  resisted  by  A.  with  all  the  force  requisite  to 
protect  his  possession  (Riddle  v."^  Brown,  20  Ala.  412). 

A  person  who  has  a  right  to  go  on  to  premises  and  make  improvements,  not 
interfering  with  the  tenant's  farming  operations,  cannot  be  forcibly  ejected,  un- 
til he  actually  does  so  interfere  (McAuley  v.  State,  3  Iowa,  435). 


136  ASSAULT  AND  BATTERY.  §  159, 

I'iages,  and  the  alleged  assault  and  battery  was  committed  in 
a  contest  between  them  as  to  their  relative  position  in  the 
funeral  procession.  It  w^as  held  that,  as  Mr.  Prince  was  in 
the  possession  of  that  part  of  the  highway  for  what  was  a 
lawful  purpose,  he  had  a  right,  either  personally  or  through 
an  agent,  to  direct  as  to  the  places  in  the  procession  w^hich 
the  carriages  engaged  by  him  should  occupy,  and  the  drivers,, 
therefore,  had  a  right  to  follow  those  directions ;  and  if,  in 
conforming  or  endeavoring  to  conform  to  them,  they  were 
prevented  from  doing  so,  or  obstructed  by  the  plaintiif,  they 
had  a  right  to  oppose  such  acts  of  the  plaintiff,  or  to  defend 
themselves  against  any  injury  fi'om  him,  by  as  much  force  as 
was  necessary,  in  order  to  enable  themselves  to  occupy  the 
place  in  the  procession  assigned  to  them.  That  the  proper 
inquiries  were :  1st.  Whether  the  defendant  was  directed  by 
Potter  to  occupy  the  place,  and  was,  while  occupying  or  en- 
deavoring to  occupy  it,  obstructed  by  the  plaintiff';  and  2d. 
If  he  was  so  disturbed,  whether  he  used  unnecessary  force  in 
obtaining  or  keeping  the  place.  And  a  verdict  having  been 
found  for  the  defendant  in  the  court  below,  the  Supreme 
Court  refused  to  disturb  it.^ 

§  159.  The  law  does  not  oblige  the  owner  of  goods  to 
stand  idly  by  and  see  a  thief  or  a  trespasser  take  them  from 
his  premises,  or  limit  him  to  mere  verbal  remonstrance. 
He  may  act  promptly ;  and  whether  he  may  use  force  or  not 
in  the  first  instance,  and  what  degree  of  force,  depends  upon 
the  exigency  .of  the  particular  case.  The  mere  taking  of  the 
property  by  the  owner,  under  such  circumstances,  from  the 
custody  of  the  wrong-doer,  without  other  force  or  violence, 
would  not  constitute  an  assault  and  battery.  To  a  count  for 
assaulting  the  plaintiff',  the  defendants  pleaded  that  the 
plaintiff  had  wrongfully  in  his  possession  dead  rabbits  belong- 
ing to  the  Marquis  of  E.,  and  was  about  wrongfully  and  un- 
lawfully to  carry  away  and  convert  them  to  his  own  use,  where- 
upon the  defendants,  as  the  servants  of  the  IMarquis,  and  by 

'  Goodwin  v.  Avery,  20  Coun.  58o. 


§  160.  DEFENSE    OF    PROPERTY.  137 

his  command,  requested  the  plaintiff  to  refrain  from  carrying 
away  and  converting  the  rabbits,  which  he  refused  to  do, 
whereupon  they,  as  the  servants  of  the  Marquis,  and  by  his 
command,  molUter  maniis  imposuerunt,  using  no  more  force 
than  was  necessary  to  take  the  rabbits  from  him.  Held,  a 
good  plea.^  If  the  taking,  or  the  attempt  to  take,  is  resisted 
by  the  trespasser,  and  he  persists  in  his  attempts  to  retain 
possession  and  carry  the  property  off,  then  the  owner  may 
lawfully  use  so  much  additional  force  as  may  be  necessary  to 
prevent  it.^  In  Baldwin  v.  Hayden,^  it  was  proved,  that  the 
defendant,  having  a  certain  writing,  handed  it  to  the  plaintiff" 
to  read  and  return  to  him,  but  that  the  plaintiff  folded  it,  and 
was  about  carrying  it  away,  when  the  defendant  seized  the 
plaintiff  by  the  collar,  threw  him  down,  held  him  down,  and 
choked  him,  until  he  gave  the  paper  up.  After  a  verdict  for 
the  plaintiff  in  the  court  below,  the  Supreme  Court  granted 
a  new  trial,  because  the  circuit  judge,  instead  of  submitting 
to  the  jury  the  questions:  1st.  Was  the  ^^aper  in  question 
delivered  by  the  defendant  to  the  plaintiff  to  be  carried  away 
by  him  ?  2d.  If  not,  did  the  defendant  use  more  force  than 
necessary  to  prevent  it, — instructed  them  that,  if  they  should 
find  that  the  paper  was  peaceably  in  the  plaintift^'s  hands,  by 
the  consent  and  delivery  of  the  defendant,  he  had  no  right  to 
use  the  violence  proved  to  recover  it.  This  withdrew  from 
the  consideration  of  the  jury  the  only  questions  of  fact  in 
the  case — the  intentioR  with  which  the  paper  was  delivered 
to  the  plaintiff",  and  the  quantum  of  force  emj)loyed  by  the 
defendant  to  prevent  the  abuse  of  that  intention — and  di- 
rected the  jury  to  the  manner  of  the  plaintiff's  obtaining  the 
paper,  instead  of  the  object  of  its  delivery  by  the  defendant. 

§  IGO.  If  a  constable,  having  an  execution  against  A.,  at- 
tempts to  take  B.'s  property  from  the  possession  of  B.,  and  a 
bystander,  upon  being  commanded  by   the  officer,  forcibly 


'  Blndcs  V.  Ili-^jjrs,  10  J.  Scott,  713. 

'  Gyre  V.  Culver,  47  Barb.  592.  =  G  Coun.  453. 


138  ASSAULT  AND  BATTERY.  §  161. 

lays  liands  upon  B.  to  overcome  Lis  resistance,  B.  may  main- 
tain an  action  for  assault  and  battery  against  the  bystander.^  ^* 

§  IGl.  The  question  as  to  ho^v  far  an  officer  about  to 
make  an  attachment  of  personal  property  upon  process 
against  one  having  in  fact  no  attachable  interest  in  the  same, 
may  be  resisted  by  the  real  owner  of  the  property,  has  been 
settled  in  Vermont  by  repeated  decisions,  which  have  held 
that  such  resistance  was  unlawful ;  and  it  follows  that  a  re- 
capture of  the  property  after  an  attachment  would  be  equally 
unlawful,  inasmuch  as  the  recapture  ^vould   necessarily  in- 


'  Elder  v.  Morrison,  10  Wend.  128;  ante,  §  25. 

*  In  this  case,  it  was  argued  for  the  defendant,  that  the  officer,  when  indem- 
nified by  the  plaintiff  in  the  execution,  was  bound  to  sell  the  property ;  that,  by 
the  New  York  Revised  Statutes,  it  was  enacted  that,  when  a  sheriff  or  other 
public  officer  sliould  find  resistance,  or  have  reason  to  apprehend  it,  in  the  exe- 
cution of  any  process  delivered  to  him.  he  may  command  every  male  inhabitant 
of  his  county,  or  as  many  as  he  shall  think  proper,  to  assist  him  in  overcoming 
such  resistance  and  in  seizing  and  confining  the  resisters;  that  the  statute  fur- 
ther required  that  the  officer  should  certify  to  the  court  from  which  the  process 
issued  the  names  of  the  resisters,  to  the  end  that  they  may  be  punished  for  their 
contempt  of  such  court ;  and  that  every  person  commanded  by  an  officer  to  assist 
him,  who  should  refuse  without  lawful  cause,  should  be  deemed  guilty  of  a  misde- 
meanor, and  subject  to  fine  and  imprisonment  (N.  Y.  Rev.  Sts.  5th  ed.  vol.  3, 
p.  740).  The  inference  drawn  by  the  defendant's  counsel,  from  the  foregoing, 
was,  that  the  person  who  comes  in  aid  of  an  officer  to  overcome  I'eddaiice,  is  jus- 
tified, whether  the  officer  is  justified  or  not;  and  that  the  question  of  title  to  the 
property  is  not  a  proper  subject  of  inquiry.  The  plaintiff',  on  the  other  hand, 
contended  that,  if  the  principal  be  a  trespasser,  all  persons  acting  in  his  aid  or 
by  his  command  are  also  trespassers;  that  the  fair  meaning  of  the  statute  is,  that 
the  officer  shall  be  aided  in  the  lawful  execution  of  his  process,  and  that  such 
process  must  be  against  the  individual  whose  person  or  property  is  attempted  to 
be  seized;  and  that  the  process,  to  authorize  a  justification,  must  be  against  the 
person  in  230ssession  of  the  property  taken.  The  Supreme  Court,  in  affirming  the 
judgment  of  the  Common  Pleas,  which  was  for  the  plaintiff",  said:  ''It  is  cer- 
tainly true  that,  ;f  the  officer  be  guilty  of  a  trespass,  those  who  act  by  his  com- 
mand or  in  his  aid  must  be  trespassers  also,  unless  they  are  to  be  excused  in  con- 
sequence of  the  provision  of  the  Revised  Statutes.  If  a  stranger  comes  in  aid  of 
an  officer  in  doing  a  lawful  act,  as  executing  legal  process,  but  the  officer,  by 
reason  of  some  subsequent  improper  act,  becomes  a  trespasser  ab  initio,  the 
stranger  does  not  thereby  become  a  trespasser.  But  when  the  original  act  of  the 
officer  is  unlawful,  any  stranger  who  aids  him  will  be  a  trespasser,  though  he 
acts  by  the  officer's  command.  The  counsel  for  the  plaintiff"  in  error  insists  that 
there  is  a  diff'erence  between  aiding  in  the  original  taking,  and  the  over- 
coming resistance.  It  seems  to  me,  that  there  is  no  such  distinction.  If  the 
taking  was  lawful,  the  resistance  was  unlawful.  But  if  the  taking  was  unlaw- 
ful, the  resistance  was  lawful.  If  the  resistance  was  lawful,  neither  the  officer 
nor  those  he  commanded  to  assist  him  could  lawfully  overcome  that  resistance. 
Nor  does  the  fact  of  the  officer's  being  indemnified  confer  on  him  any  authority 
which  lie  had  not  without  such  indemnity.  He  may  thereby  be  compelled  to  do 
an  illegal  act  in  selling  tlie  property  of  strangers  to  the  execution ;  but  he  is  a 
trespasser  in  doing  so,  as  are  all  others  who  aid  liim." 


§  IGl.  DEFENSE   OF   PROPERTY.  139 

elude  resistance  to  the  officer,  if  done  forcibly.  The  courts 
of  that  State  have  said  that  if  the  rule  were  otherwise,  it 
"would  many  times  involve  the  officer  in  such  ];)erplexing  un- 
certainty that  he  could  not,  with  any  degree  of  safety,  pro- 
ceed to  execute  his  precept ;  that  questions  of  property 
oftentimes  depend  upon  such  nice  legal  discrimination,  and 
upon  sucli  an  accurate  knowledge  of  facts,  that  to  require 
slieriffs  and  other  officers  to  decide  at  their  peril,  when  op- 
posed, whether  to  proceed,  and  to  make  the  legality  of  their 
proceedings  hinge  upon  the  correctness  of  that  decision, 
would  involve  the  public  peace  in  constant  disturbance.^  On 
the  other  hand,  in  Massachusetts,  it  has  been  decided  that 
the  owner  of  goods  which  are  in  his  actual  possession,  may 
lawfully  defend  his  possession  of  them  against  a  seizure  or  an 
attachment  by  an  officer  who  comes  to  take  them  on  a  pre- 
cept against  another  person  who  has  no  right  or  interest  in 
the  goods.^  * 


'  Men-itt  v.  Miller,  IB  Vt.  416;  State  v.  Fuller,  8  lb.  424;  State  v.  Buchanan, 
17  lb.  573;  State  v.  Miller,  12  lb.  437. 

°  Com.  V.  Kennard,  8  Pick.  133. 

*  In  Com.  V.  Kennard,  supra,  the  court  said:  ''Certainly,  tlie  officer  in  such 
case  would  be  a  trespasser,  for  he  does  not  act  under  any  precept  against  such 
owners,  nor  is  he  commanded  to  take  their  goods.  Actions  of  trespass  against 
officers  thus  transgressing  are  among  the  most  common  actions  in  our  courts,  and. 
they  depend  upon  the  same  principle  as  actions  of  assault  and  battery,  or  false 
imprisonment  by  one  who  is  arrested  on  a  writ  or  warrant  against  another  per- 
son. In  such  case,  there  is  no  authority  for  the  arrest,  and  the  person  making- 
it,  whether  by  mistake  or  design,  is  a  mere  trespasser.  And  the  same  facts 
which  would  sustain  an  action  of  trespass  by  the  person  arrested,  will  justify 
any  resistance  which  may  be  necessary  to  defend  his  2:)ersonal  liberty  short  of  in- 
jurious violence  to  the  officer.  We  cannot  distinguish  between  an  officer  who 
assumes  to  act  under  a  void  precept  and  a  stranger  who  should  do  the  same  act 
without  any  precept,  for  a  command  to  arrest  the  person  or  seize  the  goods  of  B. 
is  no  authority  against  the  person  or  goods  of  A.  And  an  officer  without  a  pre- 
cept is  no  officer  in  the  particular  case  in  which  he  so  undertakes  to  act.  The 
officer  must  judge  at  his  peril  in  regard  to  the  person  against  wdiom  he  is  com- 
manded to  act.  This  is  said  to  be  hard,  but  it  is  a  hardship  resulting  from  the 
voluntary  assumption  of  a  hazardous  office,  and,  considering  that  in  all  cases  of 
doubt  the  officer  may  require  indemnity  before  he  executes  his  precept,  the  hard- 
ship is  imaginary.  It  is  said  that  the  owner  of  goods  seized  or  attached  on  a 
precept  against  another,  has  legal  remedies  l)y  action  of  replevin,  trover,  or  tres- 
pass, and  tiierefore  ougiit  not  to  ))e  allowed  to  protect  his  goods  with  a  strong 
hand,  for  this  power  may  be  abused  so  as  to  cover  the  property  of  the  debtor, 
and  so  the  creditor  may  Ije  disabled  from  obtaining  satisfaction.  Sucii  a  mis- 
chief may  happen,  but  it  is  not  a  fair  argument  against  tlie  existence  of  a  right 
that  it  may  i)e  abused.  If  tiie  right  did  not  exist,  great  a'ouses  miglit  come  from 
the  power  in  officers  to  take  any  person's  property  upon  suspicion  or  suggestion 


140  ASSAULT    AND    BATTERY.  §  162. 

§  162.  A  forcible  entry  into  a  house  or  grounds  may  be 
resisted  with  force,  without  previously  requesting  the  in- 
truder to  depart ;  unless  the  forcible  entiy  be  made  by  an 
officer  acting  under  competent  legal  authority;-^  and  the  rule 
is  the  same,  in  the  case  of  the  forcible  seizure  of  goods.  ^■^* 

that  it  belongs  to  the  debtor,  and  the  owner  might  be  driven  to  a  replevin  in 
which  he  must  give  a  bond  with  surety,  or  to  his  action  for  damages,  in  which 
the  expense  may  consume  the  value  of  the  property.  But  it  is  again  said,  that 
the  rule  sought  to  be  established  by  the  defense  will  deprive  creditors  of  the 
power  of  trying  the  question  of  property  in  cases  where  there  may  be  grounds  to 
believe  that  it  is  covered  by  the  person  in  possession  claiming  to  be  the  owner. 
But  the  creditor  is  not  without  a  legal  remedy.  He  may  have  an  action  on  the 
case  for  interrupting  unlawfully  his  attachment.  The  officer  may  have  an  action 
of  trespass  if  the  goods  are  taken  out  of  his  possession.  And  the  trustee  process 
will  compel  the  possessor  to  make  full  disclosure  of  his  right  to  hold.  And 
besides  all  this,  the  party  is  lial)le  to  indictment,  and  if  he  fails  in  making  out 
his  right  strictly,  will  incur  a  severe  penalty.  That  a  man  may  defend  his  per- 
son, his  lands,  or  goods  against  the  intrusion  or  invasion  of  those  who  have  no 
lawful  authority  over  tliem,  would  seem  entirely  unquestionable.  If  tiie  officer 
believes  the  possession  is  only  colorable,  and  the  claim  of  property  fraudulent, 
if  backed  by  the  creditor's  orders,  or  secured  by  bond  of  indemnity,  he  will  take 
care  to  be  so  attended  as  to  be  protected  against  insult  in  the  execution  of  his 
precept." 

'  Tullay  V.  Eeed.  1  C.  &  P.  G;  Polkinhorn  v.  Wright,  8  Q.  B.  197;  Pitford 
V.  Armstrong,  Wright,  94. 

'  Green  v.  Goddard,  2  Salk.  641 ;  Owen,  150 ;  Weaver  v.  Bush,  8  Term  R.  78. 

*  Wakefield  v.  Fairman  (41  Vt.  339),  was  an  action  by  an  officer  for  an  as- 
sault and  battery  committed  upon  him  while  attempting  to  attach  a  stallion  be- 
longing to  the  defendant.  At  the  trial  of  the  cause  in  the  court  below,  the  de- 
fendant asked  the. court  to  charge  the  jury  that  if  the  attachment  was  merely  col- 
orable, and  the  real  end  and  jjurpose  was  to  use  the  process  in  order  to  restore 
the  stallion  to  the  possession  of  one  Eaton,  it  would  be  such  an  abuse  of  the  pro- 
cess that  all  acts  of  the  officer  under  it  would  be  a  trespass,  and  would  justify 
the  defendant  in  the  employment  of  reasonable  force  to  protect  his  property. 
But  the  court  refused  so  to  instruct.  The  Supi-eme  Court,  in  sustaining  such 
refusal,  said:  "The  point  made  as  to  the  attachment  being  colorable,  involves 
the  assumption  that  the  plaintiti  had  ample  official  authority  to  serve  the  writ. 
It  is  claimed  that  his  being  aware  of  the  alleged  purpose  of  the  plaintiff  in  the 
writ,  precluded  him  from  the  exercise  of  official  authority.  The  case  shows  that 
the  plaintiff  in  the  writ  had  a  valid  claim  and  cause  of  action  against  the  defend- 
ant in  it.  The  alleged  illegality  of  the  proceeding  involved  in  the  point  under 
consideration,  consists  in  the  fact  that  the  plaintiff  therein  had  the  purpose  of 
restoring  possession  of  the  horse  to  S.  V.  Eaton,  and  the  officer,  the  present 
plaintiff",  being  aware  of  that  purpose,  was  not  only  deprived  of  his  authority 
and  duty  to  serve  the  writ  as  directed  by  the  plaintiff'  therein,  but  became  a  tres- 
passer in  attempting  to  serve  it.  Aside  from  that  purpose,  it  is  not  claimed  that 
the  attachment  would  not  have  been  entirely  lawful.  It  is  virtually  conceded 
that  it  would  have  l)een.  and  that  the  efforts  of  the  plaintiff  as  officer,  to  make 
t*he  attachment,  would  have  been  lawful  and  proper.  We  have  a  course  of  de- 
cisions in  this  State,  based  on  unquestioned  principle,  and  countenanced  by 
many  cases  in  England  and  States  of  the  Union,  to  the  effect  that  such  purpose 
would  not  render  the  attachment  of  the  horse  upon  that  writ  unlawful,  even  as 
to  the  plaintiff' in  the  writ.  Of  course,  it  would  not  be  unlawful  in  the  officer  to 
make  such  attachment  merely  because  he  was  aware  of  such  purpose  in  the 
plaintiff.     The  principle  is  involved  and  strongly  illustrated  in  cases  for  mali- 


§  163.  DEFENSE   OF   PROPERTY.  141 

Where  au  officer  unlawfully  breaks  open  the  outer  door  of  a 
house,  and  entering,  seizes  property  therein,  he  may  be  right- 
fully opposed  in  carrying  the  property  away.  ^  Unless,  how- 
ever, the  trespass  is  accompanied  with  violence,  the  owner  of 
the  land  or  goods  will  not  be  justified  in  assaulting  the  tres- 
passer in  the  first  instance,  but  must  request  him  to  depart 
or  desist,  and  if  he  refuses,  he  should  gently  lay  his  hands  on 
him  for  the  purpose  of  removing  him,  and  if  he  resist  w^ith 
force,  then  force  sufficient  to  expel  him  may  be  used  in  re- 
turn by  the  owner  ;^  and  if  a  policeman  standing  by  sees  the 
resistance,  he  may  take  the  intruder  into  custody,  who,  by 
resisting  the  attempt  of  the  owner  of  the  house  to  put  him 
out,  will  be  guilty  of  assault  and  battery.^ 

§  163.  As  previously  stated,*  care  must  be  taken  not  to 
exceed  the  bounds  of  mere  defense,  prevention  or  recovery, 
so  as  to  become  vindictive.  To  an  action  for  assault  and  bat- 
tery, the  defendant  pleaded  that  he  was  possessed  of  a  horse 
and  gig  which  were  upon  a  public  highway,  and  that  the 
plaintiff  seized  the  horse  and  gig,  and  was  driving  them 
away  and  dispossessing  the  defendant  of  them,  and  would,  in 
breach  of  the  peace,  have  dispossessed  him  of  them ;  where- 
fore the  defendant  defended  his  possession  of  them  and  re- 
sisted the  plaintiff's  endeavor,  and  in  so  doing  committed  the 
said  assault.  It  was  held  that  evidence  that  showed  that  the 
plaintift'  seized  the  defendant's  horse  for  the  purpose  of  merely 
obtaining  his  name  and  address,  did  not  support  the  plea.  ^ 
A  declaration  in  trespass  charged  that  the  defendant  upset  a 


cious  prosecution,  iu  which  the  plaintiff  cannot  recover,  however  virulent  the 
malice,  if  probable  cause  for  the  prosecution  existed.  In  those  cases,  the  plaintiff 
has  the  burden  of  negating  the  existence  of  probable  cause,  as  well  as  of  proving 
the  existence  of  malice"  (citing  Sonth  Rovalton  Bank  v.  Suffolk  Bank,  27  Vt. 
505;  Barron  v.  Mason,  31  Vt.  181);  Chatfield  v.  Wilson,  28  Vt.  49;  State  v. 
Buchanan,  17  Vt.  573;  Bui.  N.  P.  14). 

'  The  People  v.  Hubbard,  24  Wend.  369. 

"^  Scribner  v.  Beach,  4  Denio,  448;  Seaman  v.  Cuppledick,  Owen,  150; 
Weaver  v.  Bush,  8  Term  R.  78;  Hawkins'  P.  C.  b.  1,  c.  60,  §  23;  1  East's  P.  C. 
400;  pod,  §  170. 

="  Wheeler  v.  Wliiting,  9  C.  &  P.  262.  "  Ante,  §  152. 

"  Gaylard  v.  Morris,  3  Exch.  695 ;  18  L.  J.  297. 


142  ASSAULT  AND  BATTERY.  §  164. 

ladder  upon  wliicli  the  plaintiff  was  standing,  and  threw  the 
plaintiff  from  it  to  the  ground.  The  defendant  pleaded  that 
he  was  possessed  of  a  house  and  garden,  and  that  the  plaintiff 
erected  a  ladder  in  the  garden  and  ascended  the  ladder  in 
order  to  nail  a  board  to  the  house  of  the  plaintiff';  that  the 
defendant  forbade  the  plaintiff*  so  to  do,  and  told  him  to 
come  down  ;  and  that,  as  the  plaintiff'  persisted  in  nailing  the 
board,  the  defendant  gently  shook  the  ladder,  gently  over- 
turned it,  and  gently  threw  the  ^^laintiff'  from  it  to  the 
ground,  doing  as  little  damage  as  possible  to  the  plaintiff. 
Upon  demurrer  to  the  plea,  it  was  held  that  the  overturning 
and  throwing  down  of  the  ladder,  however  gently,  was,  under 
the  circumstances,  unjustifiable.  ^  One  of  the  marshals  of  the 
city  of  London,  whose  duty  it  ^vas  on  the  day  of  a  public 
meeting  in  the  Guildhall,  to  see  that  a  passage  was  kept  for 
the  transit  to  the  carriages  of  the  members  of  the  corporation 
and  others,  directed  a  person  in  the  front  of  the  crowd  at 
the  entrance,  to  stand  back,  and  on  being  told  by  him  that 
he  could  not  for  those  behind  him,  struck  him  immediately 
on  the  face,  saying  that  he  would  make  him.  It  was  held 
that  in  so  doing  the  marshal  exceeded  his  authority;  that  he 
should  have  confined  himself  to  the  use  of  j^ressure,  and 
should  have  waited  a  short  time  to  afford  an  opportunity  for 
removing  the  party  in  a  more  peaceable  way.  ^* 

§  164.  The  class  of  crimes  in  the  prevention  of  -which  a 

'  Collins  V.  Renison,  Say.  138.     See  State  v.  Elliot,  11  N.  Hamp.  540. 

'  Imason  v.  Cope,  5  C.  &  P.  193. 

*  In  an  action  for  throwing  water  over  the  plaintiif's  apartment  and  herself, 
it  was  held  no  defense  that  the  plaintiff  was  engaged  in  obstructing  an  ancient 
window  of  the  defendant's  house,  and  that  the  defendant  threw  water  over  her 
to  prevent  it  (Simpson  v.  Morris,  4  Taunt.  821).  In  an  action  for  assault  and 
battery  it  is  not  a  justification  that  the  plaintiff  kept  a  disorderly  house  in  which 
were  dejjosited  stolen  goods,  and  that  the  defenclants  tore  down  the  hovise  as  a 
public  nuisance,  and  in  so  doing,  necessarily  assaulted  the  plaintiff,  and  some- 
what beat,  bruised  and  wounded  him  (Gray  v.  Ayres,  7  Dana,  375).  The  expul- 
sion of  a  person  from  his  dwellins'-house  is  an  injury  to  the  dwelling-house  (Me- 
riton  V.  Coombes,  1  Pr.  R.  570;  fo  L.  J.  C.  P.  336}.'  "Whenever  the  justifica- 
tion of  any  act,  alleged  to  be  wrongful  and  injurious,  is  based  on  the  exercise  of 
authority,  whether  that  authority  be  incident  to  the  official  character  and  duty  of 
the  party  exercising  it,  or  arise  from  the  misconduct  of  the  opposite  party  and 
the  necessities  of  the  case,  the  question  of  the  excess  of  such  authority  is  to  be 
determined  by  the  jury  "  (Hilliard  v.  Goold,  34  K  Hamp.  230). 


§ 1G5.  DEFENSE    OF    PROPERTY.  143 

man  may,  if  necessary,  exercise  his  natural  right  to  repel 
force  by  force,  to  the  taking  of  the  life  of  the  aggressor,  is 
confined  to  felonies  which  are  committed  by  violence  and 
surprise.  Foster  states  the  rule  thus  :  "  A  man  may  repel 
force  l)y  force  in  defense  of  his  j^erson,  habitation,  or  j)rop- 
ertv,  against  one  who  manifestly  intends  or  endeavors,  by 
violence  and  surprise,  to  commit  a  known  felony,  such  as 
murder,  rape,  robbery,  arson,  burglary,  and  the  like,  upon 
either.  In  these  cases,  he  is  not  obliged  to  retreat,  but 
may  pursue  his  adversary,  until  he  has  secured  himself  from 
all  danger ;  and  if  he  kill  him  in  so  doing,  it  will  be  justi- 
fiable self-defense  ;  "  ^  and  even  his  servant,  then  attend- 
ant on  him,  or  any  other  person  23resent,  may  interpose  for 
preventing  the  mischief.'^ "'  Where  a  slave  was  stealing  prop- 
erty in  the  night,  and  the  o"\vner  of  the  property,  owing  to 
the  darkness,  could  not  identify  him,  and  had  reason  to  sup- 
pose that  the  thief  could  not  be  apprehended,  it  was  held 
that  the  owner  of  the  property  might  lawfully  shoot  with  in- 
tent to  disable,  but  not  take  life.^ 

§  165.  If,  in  an  action  for  the  forcible  expulsion  of  the 
plaintiff  from  land,  the  defendant  do  not  show  a  right  of 
possession,  his  justification  will,  of  course,  fail.*  According- 
ly, where  a  landlord  enters  upon  a  tenant  who  holds  over 
after  the  expiration  of  his  lease,  lays  hands  on  the  tenant, 
and  turns  him  out,  he  cannot  truly  say  that  this  was  done 
in  defense  of  his  (the  landlord's)  possession ;  such  possession 
not  having  been  gained  until  after  the  exercise  of  the  act  of 
force  constituting  the  assault.  But  if  the  tenant,  or  any 
other  person  who  has  originally  lawfully  come  into  posses- 


'  Foster's  Cr.  L.  2d!J. 

°  State  V.  Moore,  31  Conn.  479;  Scribner  v.  Beacli,  4  Denio,  448. 

'  McClelland  v.  Kay,  14  B.  Mon.  103.  '  Post,  §  170. 

*  Blackstone  says:  "Such  homicide  as  is  committed  for  the  prevention  of 
any  forcible  and  atrocious  crime  is  justifiable  by  the  law  of  nature,  and  also  by 
the  law  of  England  as  it  stood  as  early  as  the  time  of  Bractou"  (4  Blk.  Com. 
180,  181).  And  he  specifies  as  of  that  character  those  which  we  have  spoken  of 
in  the  text.  No  others  are  mentioned  by  Hale  or  Hawkins,  who  wrote  prior  to 
Blackstone,  or  by  any  writersince  (1  Hale's  P.  C.  488;  1  Hawk.  P.  C.  71;. 


144  ,  ASSAULT    AISD    BATTERY.  §  165. 

sion,  voluntarily  leaves  the  premises  vacant,  the  landlord  or 
lawful  owner  may  at  once  enter  and  take  and  keep  posses- 
sion. The  previous  possessor  is  then  lawfully  dispossessed, 
and  if  he  reenters,  he  commits  a  trespass,  and  may  be  turned 
out  of  the  house  or  off  the  land.^  In  Russell  v.  Dodds,^ 
which  was  an  action  for  assault  and  battery,  the  facts  were 
as  follows :  In  the  interval  between  the  summer  and  winter 
schools,  one  Hutchins  proposed  to  open,  in  the  district 
school-house,  a  private  school  for  the  children  of  the  district 
and  vicinity,  which  object  was  generally  concurred  in  by  the 
inhabitants  of  the  district,  though  no  corporate  action  was 
had  in  relation  thereto.  Hutchins  applied  to  the  defendant, 
who  was  the  prudential  committee  of  the  district,  for  the  use 
of  the  school-house,  and  thereupon  the  defendant  agreed  with 
Hutchins  that  he  mio-ht  have  the  school-house  for  his  school 
for  the  i^eriod  of  eleven  weeks.  Hutchins  thereu2:)on  took 
possession  of  the  school-house  and  opened  his  school.  After 
the  school  had  continued  several  weeks,  the  defendant,  for  no 
alleged  reason,  in  the  absence  of  Hutchins  and  his  pupils,  fast- 
ened the  door  of  the  school-house,  and  the  defendant,  in  en- 
deavoring by  force  to  prevent  Hutchins  and  the  plaintiff  from 
reentering,  used  personal  violence.  The  defendant  contended 
that  he  had  no  authority  to  make  any  such  agreement  with 
Hutchins,  and  that  at  most  it  was  a  mere  license,  which  he 
might  revoke  at  any  time,  and  resume  possession.  It  was, 
however,  held  that  the  plaintiff  was  entitled  to  recover.^  * 

'  Tavlor  v.  Cole,  3  Term  E.  292;  Browne  t.  Dawson,  13  Ad.  &E.  624;  Taimtou 
V.  Costar,  7  Term  E.  431 ;  Butcher  v.  Butcher,  7  B.  &  C.  403. 

^  87  Yt.  497. 

=  Deane  v.  Clayton,  7  Taunt.  489;  Ilott  v.  Wilkes,  3  B.  &  Aid.  304;  Bird  v. 
Holhrook,  4  Bing.  G28;  Johnson  v.  Patterson,  14  Conn.  1;  State  v.  Moore,  31 
Ih.  479;  Barnes  v.  Wood,  14  Jur.  334;  Blyth  v.  Topham.  Cro.  Jac.  158;  Hard- 
castle  Y.  South  Yorkshire  &c.  E.  E.  Co.  4  H.  &  N.  74  ;  Gillis  v.  Penusylv.  E.  E. 
Co.  59  Penn.  St.  E.  129;  Touaw^nnda  E.  E.  Co.  v.  Munger,  5  Denio,  255;  afl^'d, 
4  N.  Y.  349. 

*  In  Eussell  v.  Dodds,  sv/pra,  the  court  said:  "The  defendant  in  this  case  as- 
sumed to  agree  with  Hutchins  that  he  should  have  the  use  of  the  house  for  his 
school  for  the  period  of  eleven  weeks.  Hutchins  had  acted  upon  this  agreement, 
got  up  his  school,  and  taken  possession  of  the  house,  and  was  fully  performing 
on  his  part.  If  his  school  Avas  broken  up  before  its  intended  termination,  it 
might,  and  doubtless  would,  be  a  serious  loss  to  him  as  well  as  to  his  pupils. 
Whether  the  defendant  had  exceeded  his  proper  authority  in  agreeing  to  let  him 


§  166.  DEFENSE   OF   PROPERTY.  145 

§  1G6.  Even  a  trespasser  on  the  land  of  another  may 
maintain  an  action  for  a  wanton  or  intentional  injury  inflicted 
on  him  by  the  owner.  The  question  whether  an  action  can 
be  supported  by  a  trespasser  for  personal  injury  caused  by  a 
spring  gun,  man  trap,  or  dog  spike  set  on  the  grounds  of  the 
defendant,  has  been  elaborately  discussed  in  the  English 
courts,  and  it  has  been  held  that  when  no  proper  warning 
has  been  given,  such  an  action  will  lie,  on  the  ground  that  a 
man  cannot  laAvfully  do  indirectly  that  which  it  is  unlawful 
for  him  to  do  directly.  He  cannot  shoot,  or  maim,  or  set  a 
ferocious  dog  upon  a  mere  trespasser,  or  place  there  a  concealed 
machine  where  it  will  be  likely  to  do  the  same  thing,  with- 
out warning.  In  England,  as  against  a  trespasser,  a  person 
may  make  any  defensive  erection,  or  keep  any  defensive 
animal  which  may  be  necessary  for  the  protection  of  his 
grounds,  provided  he  take  due  care  to  confine  himself  to 
necessity.  But  it  has  been  held  that  in  these  and  the  like 
cases  the  defendant  shall  not  be  justified,  even  as  against  a 
trespasser,  unless  he  give  notice  that  the  instrument  of  mis- 
chief is  in  the  way.  This  has  been  held  of  spring  guns ; 
and  it  goes  on  the  principle  that  secrecy  is  not  necessary  to 
the  object,  or,  at  least,  not  so  necessary  that  the  means  may 
be  used  to  the  hazard  of  human  life  or  safety.  This  doc- 
trine was  much  discussed  in  Deane  v.  Clayton,^  in  which  the 
defensive  erection  was  spikes  or  dog  spears  fixed  along  hare 
paths,  for  the  destruction  of  dogs  upon  the  defendant's  prem- 
ises. The  plaintiff's  dog  being  decoyed  by  a  hare  and  killed, 
the  judges  of  the  Common  Pleas  were  equally  divided  on  the 

have  the  house  for  eleven  weeks  or  not,  vpe  think  it  does  not  lie  in  the  defend- 
ant's mouth  to  say  that  he  had  no  authority  to  make  such  agreement,  and  that 
thei'efore  he  will  violate  and  repudiate  it.  If  the  district,  his  principal,  was 
content,  he  was  bound  to  be.  So  far  as  the  defendant  is  concerned,  it  is  the 
same  as  if  he  had  himself  been  the  owner  of  the  house  and  made  such  a  con- 
tract. Having  made  such  a  contract,  and  Hutcliins  having  acted  on  it,  taken 
possession  of  the  house,  and  opened  his  school,  the  agreement  was  not  revokable 
by  the  defendant  without  cause ;  nor  can  lie  allege  his  want  of  legal  authority  to 
make  the  agreement.  Hence,  when  he  undertook  forcibly  to  prevent  Hutcbius 
,  from  continuing  his  school  in  the  house  during  the  period  he  had  agreed  he 
migiit  do  so,  he  was  acting  contrary  to  law,  and  such  use  of  force  was  unlawful, 
and  he  would  be  liable  therefor." 

'  7  Taunt.  489. 

Vol.  I.— 10 


14G  ASSAULT    AND    BATTERY.  §  161^ 

question  whether  an  action  hiy  by  the  owner  of  th.e  trespass- 
ino;  cloCT.  But  they  all  seem  to  have  aoTeed  that  the  case 
w^ould  have  been  different  were  the  life  or  even  the  safety  of 
a  human  being  thus  put  in  hazard.  Dallas,  J.,  was  against 
the  action  in  that  case,  and  yet  he  admitted  that  "  the  law 
distinguishes  to  many  and  most  essential  purposes,  between 
property  and  the  life  of  a  man."  In  respect  to  such  defenses, 
Best,  C.  J.,  in  Holt  v.  Wilkes,^  said,  that  humanity  required 
that  the  fullest  notice  possible  should  be  given,  and  that  the 
law  of  England  would  not  sanction  what  was  inconsistent 
with  humanity.  In  the  United  States,  as  we  shall  have 
occasion  to  show  hereafter,-  a  man  cannot  lawfully  maintain 
on  his  premises,  as  a  protection  against  the  depredations  of 
trespassers,  anything  dangerous  to  life  or  limb.* 

6.  Metciking  pj^operty. 

§  167.  Where  personal  property  is  immediately  followed 
for  recapture  from  the  individual  taking  it,  the  same  rule  for 
the  most  part  holds,  as  in  the  defense  of  property  in  posses- 
sion. Hawkins  ^  says :  "  It  seems  certain  that  even  at  this 
day,  he  who  is  wTongfully  dispossessed  of  his  goods,  may 

'  3  B.  &  Aid.  304.  ^  Post,  §  845.  =  PL  Cr.  274. 

*  Although  the  owner  of  property  is  not  liable  to  a  trespasser,  or  to  one  who 
is  on  it  by  mere  permission  or  sufferance,  for  the  negligence  of  himself  or  serv- 
ants, or  for  that  which  would  be  a  nuisance  if  it  were  in  a  public  street  or  com- 
mon, yet  there  is  a  class  of  cases  in  which  defendants  have  been  held  responsible 
for  their  misconduct,  although  culpable  acts  of  trespass  by  the  plaintiffs  produced 
the  consequences.  In  Lynch  v.  Nurdin,  1  A.  <fcE.  IS".  S.  30,  the  defendant's  serv- 
ant left  his  horse  and  cart  standing  for  half  an  hour  in  an  open  street,  where  the 
plaintiff  with  other  children  got  into  and  about  the  cart,  and  teased  the  horse 
until  he  moved  forward,  and  with  the  cart  ran  over  and  greatly  injured  the 
plaintiff.  In  Birge  v.  Gardner,  19  Conn.  507,  a  child  too  young  to  exercise  any 
discretion,  by  shaking  a  gate,  which  the  owner  had  left  carelessly  standing  on 
his  own  land,  in  a  lane  through  which  children  were  accustomed  to  pass,  pulled 
it  over  upon  himself  and  broke  his  leg;  and  he  recovered  damages  though  he 
was  a  trespasser.  But  where  the  plaintiff"  fell  into  a  quarry  which  was  left  open 
and  unguarded  on  the  unenclosed  waste  lands  of  the  defendant,  over  which,  in 
passing  from  one  public  highway  to  another,  the  public  were  freely  allowed  to 
walk,  it  was  held  that  the  defendant,  the  owner,  was  under  no  legal  obligation 
to  fence  the  excavation,  unless  it  was  made  so  near  to  a  public  road  or  way  as  to 
constitute  a  public  nuisance.  Williams,  J.,  said:  '"Xo  right  is  alleged.  It  is 
merely  stated  that  the  owners  allowed  all  persons  to  go  upon  the  waste  without 
complaint;  that  they  were  not  churlish  enough  to  interfere  with  any  person  who 
went  there.  He  must  take  the  permission  with  its  concomitant  conditions,  and. 
it  mav  be,  perils  "  (Hounsell  v.  Smyth,  7  C.B.  X.  S.  731). 


§  1G7.  RETAKING   PROPERTY.  147 

justify  the  retaking  of  them  by  force  from  the  wrong-doer,  if 
he  refuses  to  redeliver  them;  for  the  violence  which  happens 
through  the  resistance  of  the  wrongful  possessor,  being 
originally  owing  to  his  own  fault,  gives  him  no  just  cause  of 
complaint,  inasmuch  as  he  might  have  prevented  it  by  doing 
as  he  ought."  ^  The  property  may  be  taken  from  the  custody 
of  the  wrong-doer  without  a  previous  request.  But  unless 
it  was  seized,  or  attempted  to  be  seized  forcibly,  the  owner 
cannot  justify  doing  anything  more  than  gently  laying  his 
hands  on  the  wrong-doer  to  recover  it.^  Generally,  the  only 
points  to  be  determined  in  such  case  are,  whether  the  pur- 
suer has  an  undoubted  right  of  property  and  of  immediate 
possession,  and  whether  the  individual  removing  it  is  a  mere 
wrong-doer.  In  such  case,  a  recaj^ture  of  the  property  is 
permitted  by  the  individual,  when  made  only  with  the 
reasonable  exercise  of  power  which  the  occasion  demands. 
In  State  v.  Elliot,^  the  alleged  assault  and  battery  originated 
in  a  controversy  as  to  the  ownership  of  certain  windows 
which  had  been  placed  in  a  dwelling-house  by  the  complain- 
ant while  it  was  occupied  by  her  as  a  tenant  at  sufferance, 
she  having  been  told,  as  she  alleged,  by  the  owner  of  the 
house,  that  if  she  would  furnish  windows  she  might  take 
them  away  when  she  left.  The  owner  of  the  house  having 
died,  the  administrator  directed  her  to  leave  the  premises, 
and  she  did  so,  claiming  the  windows,  the  administrator 
telling  her  before  she  left,  that  if  there  was  such  an  agree- 
ment in  relation  to  them  as  she  stated,  it  would  be  fulfilled, 
but  that  he  could  give  no  authority  to  her  at  that  time  to 
take  them.  The  building  was  afterward  sold  to  one  Jack- 
man  without  any  reserve  of  the  windows ;  and  Elliot,  the 
respondent,  w^ent  into  possession  as  tenant  of  Jackman, 
neither  of  them  having  any  notice  of  the  complainant's  claim. 


'  See  post,  §  439. 

=  Com.  Dig.  Pleader,  3  M.  17;  Weaver  v.  Bush,  8  T.  R.  78;  Scribner  v. 
Beach,  4  Denio,  448;  Barnes  v.  Martin,  15  Wis.  240;  Andre  v.  Johnson,  6 
Blackf.  375 ;  post,  §  789. 

'  11  N.  Hamp.  540. 


148  ASSAULT    AND    BATTERY.  §  1G8. 

Subsequent!}^,  the  complainant  went  to  tlie  house  in  the  re- 
spondent's absence  took  out  the  windows,  and  left  with  them  ; 
and  the  respondent  upon  being  informed  of  what  she  had 
done,  immediately  followed  to  reclaim  the  property.  She  had 
gone  about  one  hundred  rods  when  the  respondent  overtook 
her,  stopped  her  horse,  turned  him  partly  around,  and  seized 
the  window^s,  claiming  them  as  his ;  and  after  some  struggle 
and  violent  language  on  his  part,  forced  the  windows  from 
her,  causing  some  injury  to  the  comj^laiuant,  but  using  no 
more  violence  than  was  required  to  regain  possession  of  the 
windows.  As  the  windows  passed  by  deed,  and  the  re- 
spondent was  in  actual  possession  of  them  as  parcel  of  the 
premises  conveyed,  w^hen  they  were  dissevered  from  the 
house  of  the  complainant,  without  leave  or  authority  from 
any  one,  the  case  resolved  itself  into  a  question  as  to  the  ex- 
tent of  violence  which  may  be  exerted  by  the  owner  in  re- 
claiming property  taken  from  him  by  a  wrong-doer  under  a 
mistaken  claim  of  title,  where  the  retaking  attempted  is  im- 
mediately consequent  on  the  taking.  It  was  held  that  the 
facts  elicited  constituted  a  perfect  defense."^ 

§  168.  Most  cases  of  this  kind   arise  where   there  is  a 

*  In  State  v.  Elliot,  supru,  the  court  said:  "In  the  case  before  us,  the  true 
title  to  the  property,  as  we  hold,  was  in  the  individual  under  whom  the  respond- 
ent claimed  as  tenant.  At  the  same  time,  there  is  no  doubt  the  complainant 
supposed  the  property  behmged  to  her,  and  that  she  might  lawfully  remove  it. 
The  circumstances  were  such  as  would  not  call  for,  or  justify  an  aggravated  case 
of  violence,  and  fortunately  none  such  occurred.  It  does  not  appear  that  the 
respondent  in  any  manner  seized  upon  the  person  of  the  complainant,  or  that 
any  injury  occurred,  except  what  was  merely  incidental  to  the  removal  of  the 
windows  from  her  possession,  and  this  was  caused  by  the  tenacity  of  the 
complainant  in  holding  to  the  property.  There  was  no  immediate  contact  of  the 
parties  themselves,  and  nothing  indicating  a  design  of  personal  violence.  There 
■was  some  irritation  of  feeling  manifested  in  language;  but  tlie  sole  force  used 
was  directly  u[)on  the  property,  until  it  was  relinquished,  owing  to  the  weaker 
hold  of  the  complainant.  If  there  is  any  case,  where  a  recapture  of  property 
wrongfully  taken,  and  which  the  party  is  at  the  same  time  moving,  may  be  per- 
mitted, it  would  seem  as  though  this  might  be  one;  and  if  force  may  be  at  all 
allowed,  we  could  hardly  expect  a  less  degree  of  it  than  was  here  used.  We  deem 
it  our  duty  to  be  especially  cautious  in  permitting  an  injurea  party  to  take  his 
redress  into  his  own  hands.  It  is  most  usually  a  dangerous  experiment  for  him. 
and  for  the  peace  of  the  community,  so  to  do.  Circumstances  at  times  render 
this  power  necessary.  In  the  present  case,  the  respondent  went  as  far  as  was  advis- 
able, or  perhaps  justifiable  to  go.  But  as  it  does  not  appear  that  he  transcended 
his  rightful  exercise  of  power,  we  regard  his  justification  as  sufficient,  and  that 
be  cannot,  under  such  circumstances,  be  held  guilty  of  an  assault  and  battery." 


§  1G9.  RETAKING  PROPERTY.  149 

felonious  intent.  When  such  is  the  cause  of  the  taking,  the 
urgency  of  a  recapture  is  vastly  greater  than  where  the  tak- 
ing arises  from  a  mere  conflicting  claim  of  title  in  the  prop- 
erty. In  the  former  case,  a  greater  degree  of  force  may  with 
propriety  be  resorted  to  than  in  the  latter.  But  a  resort  to 
any  unusual  degree  of  violence  where  there  is  no  felonious 
intent — or  where  the  violence  is  disproportioned  to  the  ex- 
igency— or  where  there  are  other  remedies  equally  effective 
— should  not  be  encouraged,  and  will  always  admit  of  more 
or  less  doubt  whether  it  can  be  justified. 

§  169.  The  right  to  retake  land  which  is  in  the  wrong- 
ful possession  of  another,  depends  upon  somewhat  similar 
principles  wath  the  right  to  retake  personal  property.  In  an 
early  case  in  Vermont,^  the  court  held  the  folio  wing. language : 
"  If  the  defendants  went  into  possession  without  right,  and 
as  mere  trespassers  upon  the  plaintiif's  rights,  he  having  a 
superior  right  to  the  land,  he  might  well  put  the  defendants 
out  of  such  wrongful  possession,  and  if  he  did  it  by  force 
even,  he  would  acquire  a  rightful  possession,  and  would,  at 
most,  only  be  liable  for  a  breach  of  the  peace,  or  a  trespass 
upon  the  person  of  the  defendants.  It  was  formerly  con- 
sidered that  the  proprietor  of  land,  who  found  an  intruder  in 
quiet  possession  of  the  same,  must  resort  to  his  legal  remedy, 
and  could  not  forcibly  expel  such  wrong-doer.  But  it  is  now 
well  settled,  that  such  intruder  may  be  forcibly  expelled,  so 
far  as  the  land  is  concerned.  If  the  owner  of  the  land  is 
guilty  of  a  breach  of  the  peace,  and  trespass  upon  the  j^er- 
son  of  the  intruder  in  so  doing,  he  is  liable  for  that ;  but 
his  possession  of  the  land  is  lawful,  and  he  may  maintain  it, 
or  sustain  any  proper  action  for  an  infringement  of  it."  But 
necessary  force  to  eject  the  trespasser  after  he  shall  have  in- 
truded into  the  premises,  is  the  utmost  remedy  which  the 
law  allows  by  the  act  of  the  owner.^  And  if  the  trespasser 
be  allowed  to  continue  on  the  land,  and  the  owner  sleeps 
upon  his  rights,  he  will  gain  a  possession,  and  cannot  be 

'  Beecher  v.  Parmele,  9  Vt.  353.  '  Loomis  v.  Terry,  17  Wend,  496. 


150  ASSAULT    AND    BATTERY.  §  170. 

forcibly  ejected.^  lu  Mugford  v.  Richardson,  ^  it  appeared 
that  the  plaintiff  was  the  tenant  of  the  defendant ;  that  hav- 
ing failed  to  pay  rent,  and  being  notified  to  quit,  the  defend- 
ant entered  the  house  and  proceeded  to  take  out  the  windows  ; 
and  that  while  the  defendant  was  so  doing,  he  was  resisted 
by  the  plaintiif,  which  resulted  in  the  alleged  assault  and 
battery.  The  following  instruction  at  the  trial  in  the  Su- 
perior Court,  was  held  correct : — "  That  the  defendant  had  a 
right  to  enter  the  premises  and  take  out  the  windows,  pro- 
vided he  created  no  breach  of  the  peace ;  that  if  the  plaintiff 
undertook  to  prevent  him,  he  might  use  as  much  force  as  was 
required  to  overcome  her  resistance  ;  and  that  if  he  used 
more  force  than  was  necessary  for  that  purpose,  and  she 
was  injured  ]>y  reason  of  such  excess  of  force,  the  plaintiff 
was  entitled  to  recover  for  the  injuries  thereby  sustained." 
In  an  action  for  an  assault,  the  defendant  pleaded  that  the 
plaintiff  entered  the  defendant's  close  without  leave  and 
license,  and  that  the  defendant  ordered  him  oft*,  and  that  he 
not  going,  the  defendant  molliter  manus,  &.c.  Replication 
de  injuria.  It  was  held  that  it  was  not  necessary  for  the  de- 
fendant to  rebut  all  leave  and  license,  because  that  was  not 
material  to  the  issue ;  the  defendant's  justification  being 
complete,  if  he  could  show  that  he  required  the  plaintiff'  to 
leave  the  close,  and  the  plaintiff  refused  to  do  so,  although 
the  plaintiff  had,  in  fact,  entered,  at  first,  by  the  leave  and 
license  of  the  defendant,  such  leave  and  license  lasting  only 
during  the  defendant's  j^leasure.^ 

§  170.  If  the  owner  of  land  assaults  and  expels  persons 
who,  having  originally  come  into  possession  lawfully,  con- 
tinue to  hold  unlawfully  after  their  title  to  occupy  has  been 
determined,  he  will  be  liable  for  the  assault.^  The  law  does 
not  allow  a  person  to  redress  his  private  wrongs.     He  may 


'  Browne  v.  Dawson,  12  Ad.  &  E.  624.  =  6  Allen,  76. 

=  Jelly  V.  Bradley,  1  Car.  &  M.  270. 

*  Newton  v.    Harlaud,  1   Sc.   N.    R.  474;  Pollen  v.  Brewer,    7  C.   B.  K  S. 
373;  ante,  §105. 


§  171.  RIGHT   OF   OCCUPIER  TO   EJECT   PERSONS.  151 

make  use  of  force  to  defend  Lis  lawful  possession ;  but  being 
dispossessed  he  has  no  right  to  recover  possession  by  violence 
and  breach  of  the  peace,  much  less  by  the  infliction  of  per- 
sonal injury.  This  principle  applies  to  the  possession  and 
dispossession  of  personal  property ;  ^  and  it  ought,  especially, 
to  be  rigidly  observed  in  relation  to  a  man's  dwelling-house, 
in  which  he  is  peculiarly  protected  by  the  law.^  In  an  ac- 
tion for  attacking  the  plaintiff  with  a  deadly  weapon,  the  de- 
fendant undertook  to  justify  that  he  was,  at  the  time  men- 
tioned, lawfully  seized  of  a  messuage  and  dwelling-house,  of 
which  he  ought  then  to  have  been  in  the  quiet  and  peaceable 
possession,  but  which  at  the  time  when,  &c.,  was  unlawfully 
withheld  from  him  by  the  plaintiff,  he  then  being,  and  before 
having  been,  in  the  unlawful  possession  of  the  same,  and  that 
for  the  purpose  of  entering  his  said  dwelling-house,  he  com- 
mitted the  assault  and  battery  complained  of,  as  lawfully  he 
might,  using  no  more  force  than  was  necessary  to  overcome 
the  unlawful  resistance  of  the  plaintiff.  The  plaintiff  replied, 
that  he  and  his  son,  and  family  had  been,  for  the  sj^ace  of  a 
year  before  the  time  when,  <fec.,  and  at  that  time  was  in  the 
quiet  possession  of  the  dw^elliug-house,  as  his  and  their  home, 
when  the  defendant  made  a  violent  attack  on  the  plaintiff", 
and  beat  and  Ijruised  him  in  manner  set  forth  in  the  writ. 
It  was  held  that  the  plaintiff  was  entitled  to  recover.^* 

7.  Might  of  owner  or  occ^ipier  of  premises  to  eject  persons 

tlierefrom. 

§  171.  The  owner  or  rightful  occupant  of  land  or  prem- 

^  Ante,  §  162. 

"  3  Brk.  Com.  4,  5 ;  Gregory  v.  Hill,  8  Term  R.  299 ;  Hyatt  v.  Wood,  3  Johns. 
239. 

'  Sampson  v.  Henry,  11  Pick.  379. 

*  A  tenant  in  common,  cannot  lawfully  assault  one  who  enters  upon  the  land 
by  permission  of  his  cotenant  (Causce  v.  Anders,  4  Dev.  «&  Batt.  246). 

Where  the  duly  authorized  agent  of  a  tenant  in  common,  of  land,  goes  thereon 
to  remove  his  principal's  share  of  the  crops,  and  is  forciljly  ejected  therefrom  by 
the  cotenant,the  latter  is  guilty  of  an  assault  and  battery  (Com.  v.  Rignev,  4  Allen, 
316;  citing  Com.  v.  Randall,  4  Gray,  36;  Com.  v.  Presby,  14  lb.  65;  Walker 
V.  Fit^s,  24  Pick.  191;  Chandlery.  Tliurston,  10  Pick.  205;  Com.  v.  Lakeman, 
4  Cush.  597. 


152  ASSAULT   AND    BATTERY,  '  §  171. 

ises  has  a  legal  right  to  control  it,  and  to  allow  whom  he 
pleases  to  enter  and  remain  there.  But  if  he  desires  a  per- 
son to  leave,  he  must  first  request  him  to  do  so,  and  if  such 
person  refuses,  he  can  then  use  so  much  force  as  is  necessary 
to  ]3ut  him  out.^  And  although  one  enters  the  office  of  an- 
other for  the  purpose  of  transacting  business,  the  owner  or 
his  agent  may  eject  him  after  a  request  to  leave  and  a  refusal, 
using  no  more  force  than  is  necessary.^  In  an  action  for  as- 
sault and  battery  by  A.  against  B.,  it  appeared  that  A.,  hav- 
ing been  turned  out  of  the  liquor  store  of  B.,  where  he  had 
become  drunk,  went  back  flourishiug  a  knife  and  threatening, 
B.,  whereupon  the  latter  retreated  a  little  and  then  struck  A. 
with  a  stick.  The  court  refused  to  instruct  the  jury  that  the 
plaintiff  deserved  more  forbearance  at  the  defendant's  hands 
on  account  of  havino^  become  intoxicated  at  his  bar,  but 
charged  them  that  the  defendant's  store  "  was  his  castle,"  and 
that  no  person,  after  being  ejected  from  it,  had  a  right  to  re- 
turn unless  armed  with  legal  authority.^  Where  goods  are 
placed  in  a  shop  window  with  the  price  marked  on  them,  the 
shopkeeper  is  not  obliged  to  sell  them  at  the  price  indicated ; 
and  if  a  person  insists  upon  having  the  goods,  and  refuses  to 
leave  the  shop,  after  being  requested  by  the  shopkeeper  or 
his  servants,  he  may  be  ejected.^ '^' 


'  State  V,  Woodward,  50  N.  Hamp.  527. 

*  Woodman  v.  Howell,  45  111.  367.  '  Pierce  v.  Hicks,  34  Geo.  259. 

*  Timothy  v.  Simpson,  6  C.  &  P.  500. 

*  Where,  in  an  action  by  a  female  employee  in  a  factory  against  the  superin- 
tendent for  using  improper  force  in  ejecting  her  for  disorderly  conduct,  the  judge 
charged  the  jury  that  if,  during  the  process  of  ejecting  her  from  the  room,  the 
defendant  used  unnecessary  and  improper  force  and  violence  towards  her,  he 
thereby  became  a  trespasser  ah  initio,  and  would  be  lialjle  for  all  his  acts;  it  was 
held  that  the  instruction  was  erroneous,  because  the  defendant  was  not  in  the 
exercise  of  any  authority  conferred  by  law  when  he  committed  the  alleged  as- 
sault. "He  had  the  legal  right  to  use  the  kind  and  degree  of  force  necessary 
and  appropriate  to  protect  his  person  and  his  employer's  property  from  the  dis- 
order and  misconduct  of  the  plaintiff.  But  the  parties  stood  on  equal  terms  in 
this  respect.  Their  relation  to  each  otlier  was  created  by  contract,  and  the  right 
of  the  defendant  to  remove  the  plaintiff  from  the  room  for  misbehavior  was  an 
incident  to  that  relation"  (Esty  v.  Wilmot,  15  Gray,  168). 

It  is  as  unlawful  for  a  grown  son  or  daughter  to  create  a  disturbance  in  the 
family  as  for  a  mere  stranger,  and  the  father  may  as  rightfully  interpose  to  pre- 
serve tlie  good  order  and  propriety  of  the  household.  Where  a  married  daughter, 
who  lived  with  her  father,  engaged  in  an  angry  dispute  with  the  servant  girl. 


§  173.  EIGHT  OF   OCCUPIER  TO  EJECT  PERSONS.  153 

§  172.  The  owner  or  occupier  is  not,  however,  permitted 
to  invite  or  allow  another  to  enter  in  order  to  irritate  or  in- 
sult him,  and  thus  make  an  excuse  for  committing  an  assault 
and  battery  upon  him.  Where  A.  entered  a  book  store  with 
the  permission  of  the  owner,  and  conducted  himself  peace- 
ably, and  B.,  who  was  a  partner  of  the  owner,  and  had  a 
right  to  the  possession  in  common  with  him,  seeking  for  an 
occasion  to  lay  hands  on  A.,  in  order  to  injure  and  abuse  him, 
used  insulting  language  to  irritate  and  provoke  him,  and  re- 
quested A.  to  leave  the  store,  and  A.  refusing  to  depart,  B. 
forced  him  towards  the  door,  it  was  held  that  B.  was  liable 
for  the  assault.^ "' 

§  173.  When  a  person  enters  another's  premises  for  a  law- 
ful purpose,  which  he  has  a  right  to  accomplish  before  leav- 
ing, he  may  resist  an  attempt  to  put  him  out.  Accordingly, 
where  in  an  action  for  assault  and  battery,  it  appeared  that 
the  defendant  went  to  the  plaintiff's  house  with  a  subpoena, 
which  he  was  authorized  by  law  to  serve,  that  the  person 
upon  whom  he  was  to  make  service  was  in  the  house,  and 
that,  having  found  the  door  open,  he  entered  peaceably,  it 
was  held  that  the  plaintiff,  by  resisting  the  defendant  in 
making  such  service,  was  guilty  of  an  unlawful  act ;  that  the 
defendant  was  justified,  notwithstanding  such  resistance,  in 


and  refused  to  desist  when  requested  by  her  father  to  do  so,  it  was  held  that  he 
was  justified  in  employing  whatever  force  was  necessary  to  preserve  the  peace  of 
his  family  (Smith  v.  Slocum,  62  lil.  354). 

'  Watrous  v.  Steel,  4  Vt.  629. 

*  In  the  above  case,  the  following  instructions  of  the  court  below  were  held 
correct:  "  That,  if  the  plaintiff  was  in  the  book  store  making  a  noise  or  disturb- 
ance, the  defendant,  after  requesting  him  to  depart,  might  lawfully  use  all  neces- 
sary force,  short  of  actual  striking,  to  put  him  out;  but,  although  the  defendant 
had  such  right,  yet  as  the  plaintiff  entered  the  store  by  license,  if  the  jury  found 
that  he  was  conducting  himself  peaceably,  and  making  no  disturbance  there,  and 
that  the  defendant  was  the  aggressor,  and  used  insulting  language  to  the  plaintiff 
to  irritate  and  provoke  him,  they  would  inquire  (although  the  defendant  re- 
quested him  to  leave  the  store,  and  he  refused)  whether  the  assault  was  made 
upon  the  plaintiff  to  remove  him  from  the  store  and  in  defense  of  his  possession, 
or  whether  it  was  done  without  such  intent,  and  the  occasion  was  sought  by  the 
defendant  to  lay  hands  upon  tlie  plaintiff  for  the  purpose  of  injuring  and  abusing 
him.  If  they  found  that  the  assault  was  committed  for  the  former  cause,  they 
would  return  a  verdict  for  the  defendant ;  if  for  the  latter  purpose,  the  defend- 
ant's plea  of  justification  was  not  supported.'' 


154  ASSAULT    AND    BATTERY.  §  174. 

using  all  the  force  necessary  to  enable  him  to  serve  the  sub- 
pcena ;  and  that  he  was  only  liable  for  violence  used  by  him 
more  than,  was  necessary  to  overcome  the  plaintiff's  resist- 
a,nce.^  And  an  action  of  trespass  may  be  maintained  against 
a  clerk  of  court  who  forcibly  turns  a  person  out  of  the  clerk's 
office  without  cause,  though  such  person  went  there  merely 
from  motives  of  curiosity.^ 

8,  HigM  of  innlceeper  to  exclude  or  exj^el  persons. 

§  174.  As  an  innkeeper  holds  out  his  house  as  a  public 
place  to  which  travelers  may  resort,  he  cannot  prohibit  per- 
sons who  come  in  that  chara(iter,  in  a  proper  manner,  and  at 
suitable  times,  from  entering,  so  long  as  he  has  the  means  of 
accommodation  for  them.  But  he  is  not  obliged  to  make  his 
house  a  common  receptacle  for  all  comers,  whatever  may  be 
their  character  or  condition.  He  is  not  obliged  to  receive 
one  who  is  not  able  to  pay  for  his  entertainment.  As  he  is 
indictable  if  he  usually  harbor  thieves,  and  is  answerable  for 
the  safe  keeping  of  the  goods  of  his  guests,  he  is  not  bound 
to  admit  one  whose  notorious  character  as  a  thief  furnishes 
good  reason  to  suppose  that  he  will  purloin  the  goods  of  his 
guests,  or  his  own.  So,  likewise,  as  he  is  liable  if  his  house 
is  disorderly,  he  cannot  be  held  to  wait  until  an  affray  is 
begun  before  he  interposes ;  but  may  exclude  common  brawl- 
ers, and  any  one  who  comes  with  intent  to  commit  an  assault 
or  make  an  affray.  And  he  may  prohibit  the  entry  of  one 
whose  misconduct  in  other  particulars,  or  whose  filthy  con- 
dition would  subject  his  guests  to  annoyance.  He  has  aright 
to  prohibit  idle  persons  and  common  drunkards  from  enter- 
ing, and  to  require  them  and  the  others  before  mentioned  to 
depart  if  they  have  already  entered.  i\.nd  any  person  enter- 
ing not  for  a  lawful  purpose,  but  to  do  an  unlawful  act — as 
to  commit  an  assault  upon  one  rightfully  there — will  be 
deemed  a  trespasser.^ 

'  Hager  v.  Danforth,  30  Barl).  16;  reversing  8.  c.  8  How.  435. 

'  O'Hara  v.  King,  52  111.  303. 

^  Hawk.  Cr.  L.  ch.  78,  §  1 ;  Bac.    Abr.  Tit.  luus ;  Story  on  Bailment,  §  307. 


§  175.  EIGHT   OF   INNKEEPER  TO   EXPEL   PERSONS.  155 

§  175.  As  an  innkeeper  is  bound  to  admit  travelers 
under  certain  limitations,  he  may  likewise  be  held,  under 
proper  limitations,  to  admit  those  who  have  business  with 
them  as  such.  This  may  be  considered  as  derived  from  the 
right  of  t|ie  traveler.  There  may  be  such  connection  be- 
tween travelers  and  those  engaged  in  their  conveyance,  that 
the  latter,  although  noli  specially  sent  for,  may  have  a  right 
to  enter  a  common  inn ;  or  such  that  the  landlord,  if  he  give 
a  general  license  to  some  of  those  whose  business  is  connected 
with  his  guests,  in  their  character  as  travelers,  cannot  law- 
ftdly  exclude  others  pursuing  the  same  business,  and  who 
enter  for  a  similar  object.  There  seems  to  be  no  good  reason 
why  the  landlord  should  have  the  power  to  discriminate  in 
such  cases,  and  to  say  that  one  shall  be  admitted  and  another 
excluded,  so  long  as  each  has  the  same  connection  with  his 
guests,  the  same  lawful  purpose,  comes  in  a  like  suitable 
condition,  and  with  as  proper  a  demeanor,  any  more  than  he 
has  the  right  to  admit  one  traveler  and  exclude  another 
merely  because  it  is  his  pleasure.  If  one  came  to  injure  the 
house,  or  if  his  business  operated  directly  as  an  injury,  that 
would  present  a  diiferent  question.  And  perhaps  there  may 
be  cases  in  which  an  innkeeper  may  have  a  right  to  exclude 
all  but  travelers  and  those  who  have  been  sent  for  by  them.^  * 

'  Markham  v.  Brown,  8  N.  Hamp.  523. 

*  In  the  case  here  cited,  which  was  an  action  against  a  stage  driver  and  stage 
proprietor  for  entering  the  plaintiff's  house,  being  a  common  inn,  and  making  a 
disturbance  there,  the  court  stated  the  law  as  follows:  "The  defendant  had 
clearly  a  right  to  estal>ish  a  line  of  stage  coaches,  and  to  go  to  the  plaintiff's  inn 
■with  travelers,  and  he  might,  of  course,  lawfully  enter  it  for  the  purpose  of 
leaving  their  baggage  and  receiving  his  fare.  And  we  are  of  opinion  that,  so 
long  as  others  were  permitted  to  do  the  same,  the  defendant  had  an  equal  and 
lawful  right,  notwithstanding  any  prohibition  by  the  plaintiff,  to  enter  the 
plaintiff's  inn  for  the  purpose  of  tendering  his  coach  for  the  use  of  travelers  and 
soliciting  them  to  take  passage  with  him,  and  for  that  purpose  to  go  into  the 
common  public  rooms  of  the  inn  where  guests  were  usually  placed  to  await  the 
departure  of  the  stages,  although  he  was  not  requested  by  sucli  guests ;  provided 
there  was  a  reasonable  expectation  that  passengers  might  be  there,  and  he  came 
at  a  suitable  time,  in  a  proper  manner,  demeaned  himself  peaceably,  and  re- 
mained no  longer  than  was  necessary,  and  was  doing'  no  injury  to  the  plaintiff. 
But  the  defendant  might  forfeit  this  right  by  his  ..misconduct,  so  that  the 
plaintiff  might  require  him  to  depart,  and  expel  him;  and  if,  by  reason  of 
several  instances  of  mis'conduct,  it  appeared  to  be  necessary,  for  the  protection 
of  his  guests  or  of  himself,  the  plaintiff  might  prohibit  the  defendant  from  enter- 
ing again  until  the  ground  of  ajjpreheusiou  was  removed.      Thus,  if  affrays  or 


156  ASSAULT    AND    BATTERY.  §§  17G,  177. 

§  170.  If  a  person  conducts  himself  in  a  disorderly  man- 
ner in  a  public  house,  and  the  landlord  requests  him  to  de- 
part, and  he  refuses  to  do  so,  the  landlord  is  justified  in  lay- 
ini^  hands  on  him  to  put  him  out.^     If  while  the  landlord 
has  hold  of  him  to  put  him  out,  he  lays  hands  on  the  land- 
lord, this  is  an  assault,  and  the  latter  may  repel  force  by 
by  force ;  ^  and  the  landlord  will  be  justified   although  he 
does  not  succeed  in  ejecting  him.^     Trespass  for  assaulting 
the  plaintiff  and  striking  him  with  a  bludgeon,  and  with  the 
said  bludgeon  striking  and  j)ushing  him  down  to  and  upon 
the  ground :  pleas,  first,  not  guilty ;  secondly,  as  to  assaulting, 
beating,  and  ill  treating  the  plaintiff;  that  the  defendant  was 
the  possessor  of  a  public  house,  that  the  plaintiff  made  a  great 
noise  and  disturbance  therein,  and  obstructed  the  business, 
whereupon  the  defendant  requested  him  to  cease  from  mak- 
ing such  noise  and  disturbance,  and  to  leave  the  house,  which 
he  refused  to  do,  whereupon  the  defendant,  in  defense  of  his 
possession,  molliter  mantis  imposuit,  to  remove  the  plaintiff, 
and  did  remove  him  out  of  the  house ;  thirdly,  as  to  assault- 
ing, beating  and  ill  treating  the  plaintiff,  son  assault  demesne; 
replication  to  the  tAvo  latter  pleas,  de  injuria.     At  the  trial, 
the  judge  directed  the  jury  that  even  though  the  plaintiff 
assaulted  the  defendant  first,  yet  if  the  defendant  struck  the 
plaintiff  with  a  bludgeon,  he  was  not  justified  on  the  plead- 
ings.    It  was  held  that  this  was  a  misdirection.* 

§  177.  If  a  person  without  committing  any  assault,  make 
such  noise  or  disturbance  in  a  public  house  as  would  create 


quarrels  were  caused  through  his  fault,  or  he  was  noisy,  disturbing  the  guests  in 
the  house,  interfered  with  its  due  regulation,  intruded  into  the  private  rooms, 
remained  longer  than  was  necessary  after  being  requested  to  depart,  or  other- 
wise abused  his  right,  as  by  improper  importunity  to  guests  to  induce  them  to 
take  passage  with  him,  the  plaintiff  would  have  a  right  to  reform  that  and,  if 
necessary,  to  forbid  the  defendant  to  enter,  and  treat  him  as  a  trespasser  if  he 
disregarded  the  prohibition.'' 

'  Howell  V.  Jackson,  6  C.  &  P.  723 ;  Webster  v.  Watts,  11  Q.  B.  311 ;  IT  L.  J. 
73. 

^  Howell  V.  Jackson,  supra. 

'  Moriarty  v.  Brooks,  6  C.  &  P.  684.  *  Howell  v.  Jackson,  supra. 


§  177.  RIGHT   OF   INNKEEPER  TO   EXPEL   PERSONS.  157 

alarm,  and  disquiet  tLe  neigliborhood  and  the  persons  passing 
along  the  adjacent  street,  this  would  be  such  a  breach  of  the 
peace  as  would  not  only  justify  the  landlord  in  turning  the 
person  out  of  the  house,  but  also  in  immediately  giving  him 
into  the  custody  of  a  peace  officer,  provided  that  this  had  oc- 
curred in  the  presence  of  the  officer.  It  was  accordingly  held 
to  be  a  good  plea  in  justification  to  a  declaration  for  assault- 
ing and  seizing  the  plaintiff  and  forcing  him  to  go  as  a  pris- 
oner from  a  public  house  to  a  police  station,  that  the  defend- 
ant  was  lawfully  possessed  of  a  house  being  a  tavern,  <fec., 
that  the  plaintiff  came  into  the  house  and  made  a  disturb- 
ance, and  assaulted  the  defendant  and  others  there,  and  after- 
wards stood  and  remained  in  the  public  highway,  near  and 
opposite  to  the  door  of  the  said  house,  and  made  a  disturb- 
ance there,  and  used  menacing  language  to  the  defendant 
and  his  family  then  in  the  said  house  and  within  hearing, 
and  that  by  reason  of  such  the  plaintiff's  cpnduct,  while  he  so 
stood,  &c.,  many  persons  while  he  so  stood,  &c.,  congregated 
in  the  said  highway,  near  to,  and  opposite,  <fec.,  and  made  a 
noise,  disturbance  and  riot  in  the  said  highway,  near,  <fec.,  in 
breach  of  the  peace  and  to  the  obstruction  of  the  defendant's 
business,  and  of  the  said  highway ;  and  at  the  time  of  the 
removal  afore  mentioned,  the  plaintiff'  persisted  in  so  stand- 
ing, &c.,  making  such  noise,  <fec.,  and  by  reason  of  his  so 
standing,  &c.,  making,  &c.,  was  causing  many  people  to  con- 
gregate in  the  said  highway,  opposite  and  near  to,  &c.,  in 
breach  of  the  peace  and  to  the  obstruction  of  the  said  high- 
way, although  before  such  removal,  and  while  he  was  so 
standing,  <fec.,  making,  <fec.,  he  was  requested  by  the  defend- 
ant to  depart,  &c.,  and  to  cease  from  making  such  noise,  &c. ; 
wherefore  the  defendant,  in  order  to  restore  and  preserve  the 
peace,  and  to  get  rid  of  the  nuisance  so  occasioned  by  the 
plaintiff,  just  V)efore  the  time  when,  &g.,  gave  the  plaintiff  in 
charge  to  A.  B,,  a  constable,  and  required  A.  B.  to  remove 
the  plaintiff  and  deal  with  him  according  to  law ;  and  A.  B. 
then  being  such  constable,  thereupon  removed  the  plaintiff 
and  took  him  to  the  police  station,  and  detained  him  there. 


158  ASSAULT    AND    BATTERY.  §  178. 

to  be  dealt  with  according  to  law,  and  examined  by  a  justice 
of  tlie  peace,  and  for  the  purpose  of  so  doing,  and  in  so 
doing,  committed  the  trespasses.^ 

9.  Expiihion  from  religious  meeting. 

§  178.  A  religious  society  may  lawfully  prescribe  sucli 
rules  as  they  think  proper  for  keeping  order  during  public 
worship,  and  may  use  necessary  force  to  eject  a  person  mak- 
ing a  disturbance.  ^  But  the  offender  must  first  be  requested 
to  retire ;  though  it  is  not  necessary  to  show  that  the  dis- 
turbance was  wilful.'^  Wall  v.  Lee^  was  an  action  for  assault 
and  battery  alleged  to  have  been  committed  in  a  Roman 
Catholic  church.  The  plaintiff  was  a  member  of  the  congre- 
gation, and  also  a  pewholder.  The  defendant,  Gorman,  was 
a  member  of  the  same  congregation.  The  defendant,  Lee,, 
was  a  Roman  Catholic  clergyman  and  j)astor  of  the  church. 
He  rented  out  the  pews,  conducted  the  religious  services,  and 
had  the  exclusive  charge  of  the  church  edifice,  the  right  of 
property  in  which  was  in  the  bishop.  On  Sunday  there  was 
di™e  service  in  the  church,  conducted,  as  usual,  by  the  de- 
fendant Lee.  In  the  course  of  his  sermon  he  alluded,  with- 
out naming  him,  to  some  membef  of  the  congregation  who 
had  young  ladies  at  his  house,  and  drinking  and  dancing  on 
Saturday  night,  which  lasted  until  some  time  into  the  morn- 
ing of  Sunday,  and  that  some  of  the  party  became  intoxi- 
cated. These  revels  and  practices  the  preacher  condemned 
as  unworthy  pastimes.  When  the  sermon  was  closed,  and 
before  the  congregation  was  dismissed,  the  defendant  Lee 
came  down  from  the  pulpit  to  take  up  a  collection.  It  was 
the  custom  for  the  pastor  to  call  upon  each  member  of  the 
church  in  his  seat  and  personally  solicit  his  subscription  oi* 
contribution.  The  pastor  came  to  the  plaintiff's  pew,  and 
solicited  his  contribution.     The  j^laintift'  immediately  rose 


'  Ibid. ;  seej'os^,  §  315.  =  McLain  v.  Matlock,  7  Ind.  525. 

'  Ballard  v.  Bond,  1  Jur.  7.  "  31  N.  Y.  141. 


§  178.  EXPULSION  FROM   RELIGIOUS   MEETING.  159 

from  Ills  seat,  and  in  a  voice  louder  than  usual  began  to  in- 
terrogate the  defendant  in  regard  to  what  he  had  said  about 
the  dancing,  and  stated  that  what  had  been  said  was  false, 
and  demanded  the  name  of  the  defendant's  informer.  The 
defendant  requested  him  to  sit  down  or  go  out  of  the  church ; 
to  w^hich  the  plaintiif  replied  that  he  would  not  go  out  for 
him  or  any  other  man,  until  he  got  an  explanation.  The 
defendant  again  told  him  to  sit  down,  and  he  said  he  would 
not.  The  defendant  Lee  then  took  him  by  the  collar  of  the 
coat,  and  attempted  to  put  him  out,  and  failed.  He  then 
called  for  aid  to  remove  the  plaintiff  from  the  church,  and 
the  defendant  Gorman  came  to  his  assistance.  Both  of  them 
took  hold  of  the  plaintiff's  coat  collar,  and  endeavored,  by 
pulling  him  from  the  pew,  to  remove  him  from  the  church. 
The  plaintiff  resisted,  and  they  were  unable  to  effect  their 
purpose,  and  so  desisted.  There  was  no  striking.  At  the 
trial  in  the  court  below-,  the  jury,  under  the  charge  of  the 
judge,  found  a  verdict  for  the  plaintiff  of  $200.  The  judge, 
among  other  things,  charged  the  jury,  that  in  order  to  justify 
the  removal,  or  attempt  at  removal,  it  must  be  made  to  ap- 
pear that  the  person  so  forcibly  removed,  or  attempted  to  be 
removed,  was  guilt 5^  of  w^ilfully  disturbing  the  meeting.  The 
verdict  w^as,  how^ever,  set  aside  by  the  Court  of  Appeals.  * 


*  In  Wall  V.  Lee,  siqyra,  the  New  York  Court  of  Appeals,  per  Davies,  J.,  in 
reversing  the  judgment,  said;  "The  fact  of  disturbance,  and  refusing  to  depart 
upon  request,  were  the  essential  and  only  elements  necessary  to  a  justification  of 
the  trespass  and  assault.  There  is  not  an  intimation  in  any  of  the  cases  that  the 
disturbance  must  be  wilful;  and  no  such  qualification  of  the  oflfense  has  ever 
been  deemed  requisite  to  justify  the  removal  or  attempted  removal  of  the 
offender.  The  precedents  of  pleas  contain  no  countenance  of  the  idea  that  the 
noise  or  disturbance  which  justifies  the  molUter  manus  imposuit  to  turn  the 
off'endcr  out,  must  be  wilful.  There  was  no  warrant,  therefore,  in  that  part  of 
the  charge  of  the  learned  justice  to  the  jury,  that  to  justify  the  removal  or 
a"ttempted  removal  of  the  plaintiflf,  they  must  be  satisfied  that  he  was  guilty  of 
a  wilful  disturbance  of  the  meeting.  If  it  had  been  a  proceeding  to  convict  the 
plaintitf  under  the  statute,  then  this  rule  of  evidence  would  have  been  appro- 
priate; and  tlie  error  of  the  learned  justice  consists  in  the  position  that  the  same 
evidence  was  requisite  to  justify  a  removal  or  attempted  removal,  as  would  have 
been  required  for  a  conviction  under  the  statute.  *  *  *  Religious  meetings 
would  lose  all  solemnity  and  usefulness  if  turned  into  halls  of  disputation,  and 
any  and  every  one  could  call  upon  the  minister  for  explanation  of  his  sermons, 
or  be  permitted  to  engage  in  controversy  with  him  pending  the  services.     Such 


160  ASSAULT    AND    BATTERY.  §  179. 

10.  Expulsion  from  lylace  of  public  amusement 

§  179,  The  sale  of  a  ticket  of  admission  to  a  place  of 
public  amusement  is  a  license  to  the  purchaser  of  the  ticket 
to  enter  and  remain  during  the  performance.  But  the  license 
may  be  revoked  before  tlie  purchaser  has  taken  his  seat, 
who,  if  he  remain  and  refuse  to  de^^art  upon  request,  becomes 
a  trespasser,  and  may  be  removed  by  the  employment  of  so 
mucli  force  as  his  resistance  renders  necessary.^  *  To  an  ac- 
tion for  assault  and  false  imprisonment,  the  defendant  pleaded 
that,  at  tke  time  of  the  supposed  trespass,  the  plaintiff  was 
in  the  close  of  E.,  and  that  the  defendant,  as  the  servant  of 
E.,  and  by  his  command,  molliter  mantis  imposuit  on  the 
plaintiff  to  remove  him  from  the  close,  which  was  the  tres- 
pass  complained  of.     The  plaintiff  replied  that  he  was  in 


exhibitions  would  be  most  unseemly,  and  convert  our  churches  into  arenas  for 
controversy  and  ill-feeling.  It  is  most  appropriate  that  the  minister  or  priest 
should  preserve  order,  and  rebuke  all  violations  of  it.  As  the  acknowledged 
presiding  officer  of  the  meeting,  it  is  liis  duty  to  check  all  attempts  to  interrupt 
its  order,  quiet,  and  solemnity;  and  for  this  purpose,  he  unquestionably  has  full 
power  and  authority  to  call  upon  others  to  aid  him,  or  direct  them  to  remove  the 
offender.  In  this  sense,  therefore,  he  has  a  greater  right  to  enforce  order,  and 
use  force  for  that  purpose,  than  any  other  member  of  the  congregation." 

In  a  recent  case  in  Massachusetts  it  was  held  that  the  sexton  of  a  church 
whose  duty  it  is  to  take  charge  of,  and  conduct  funerals  there,  may  lawfully 
eject  from  the  church  an  undertaker  who,  upon  being  requested  to  desist  and 
leave,  refuses,  and  persists  in  unauthorized  intrusion  (Com.  v.  Dougherty,  107 
Mass.  243). 

'  Burton  v.  Scherpf,  1  Allen,  133;  Nettleton  v.  Sikes,  8  Mete.  34;  Claflin  v. 
Carpenter,  4  lb.  580;  Giles  v.  Simonds,  15  Gray,  441_. 

*  The  remedy  of  the  buyer  of  tiie  ticket  in  such  case  is  an  action  to  recover 
the  money  paid,  and  damages  for  breach  of  contract. 

In  Burton  v.  Scherpf,  supra,  the  general  proposition  that  a  parol  license  by 
the  owner  of  real  estate  to  enter  or  do  any  particular  act  upon  it,  may  commonly 
be  revoked  at  any  time  before  the  object  and  purpose  for  which  it  was  conceded 
has  been  fully  availed  of  or  wholly  accomplished,  was  not  disputed  by  the 
plaintifi".  But  he  claimed  that  as  the  contract  under  which  his  license  was  de- 
rived was  either  wholly  or  in  part  executed,  and  as  he  was  in  the  actual  enjoy- 
ment of  the  privilege  conferred  upon  him  at  the  time  when  the  defendant  under- 
took to  revoke  it,  the  right  of  revocation  was  lost,  and  could  no  longer  be 
asserted.  Th^'s  claim  was  founded  upon  the  clear  and  well-recognized  distinc- 
tion between  a  mere  license,  which  neither  passes  any  interest,  nor  alters  or  tran- 
fers  property  in  anything,  but  only  makes  an  action  lawful  which  would  other- 
wise have  been  unlawful;  and  a  license  coupled  with  a  grant,  or  arising  from  a 
sale  of  property  to  be  taken  and  carried  from  the  land  where  it  is  situate  or  upon 
which  it  is  placed.  In  the  latter  case,  it  is  irrevocable  so  far  as  the  contract  is 
executed  (Kuggles  v.  Lesure,  24  Pick.  187;  Hewlins  v.  Sliippam,  5  B.  &  C.  221; 
Thomas  v.  Sorrell,  Vaughan,  330). 


I 


§  179.  EXPULSION   FROM   PLACE   OF   PUBLIC  AMUSEMENT.        161 

the  close  by  the  leave  aud  license  of  E.,  which  was  traversed 
by  the  rejoinder.  The  evidence  was  that  E.  was  steward  of 
the  Lancaster  races ;  that  tickets  of  admission  to  the  grand 
stand  were  issued  with  his  sanction,  and  sold  for  a  guinea 
each,  entitling  the  holders  to  come  into  the  stand  and  the 
inclosure  around  it;  that  the  plaintiff  bought  one  of  the 
tickets,  and  was  in  the  inclosure  during  the  races ;  that  the 
defendant,  by  the  order  of  E.,  desired  him  to  leave,  and  on 
his  refusing  to  do  so,  the  defendant,  after  a  reasonable  time 
had  elapsed  for  his  quitting,  put  him  out,  using  no  unneces- 
sary violence,  but  not  returning  the  guinea.  It  was  held 
that  the  jury  were  properly  directed  to  find  the  issue  for  the 
defendant.^  McCrea  v.  Marsh  ^  was  an  action  for  an  assault 
in  forcibly  excluding  the  j^laintiif  from  a  theater  in  Boston, 
on  account  of  his  color.  It  appeared  that  the  plaintiff 
having  bought  the  usual  ticket,  offered  it  to  the  door-keeper 
in  attendance  at  the  head  of  the  staircase  leading  to  the 
"  family  circle,"  and  that  the  door-keeper,  acting  under  the 
orders  of  the  defendant,  forcibly  prevented  his  entrance. 
The  Supreme  Court  held  that  it  was  correctly  ruled  at  the 
trial  in  the  Superior  Court  that  the  plaintiff  could  not  main- 
tain the  action."^ 

'  Wood  V.  Leadbitter,  13  Mees.  &  W.  838.  ■  13  Gray,  211. 

*  In  McCrea  v.  Marsh,  supra,  the  court  said:  "Assuming  that  the  plaintiff, 
by  the  purchase  of  the  ticket  from  the  defendant,  obtained  permission  to  enter 
the  family  circle  in  the  Howard  Athengeum  in  his  own  person,  and  occupy  a 
place  there  during  the  exhibition,  yet  it  was  only  an  executory  contract.  It  was 
a  license  legally  revocable,  and  was  revoked  before  it  was  in  any  part  executed. 
After  it  was  revoked,  the  plaintifl''s  attempts  to  enter  were  unwarranted,  and  the 
derendant  rightfully  used  the  force  necessary  to  prevent  his  entry.  The  plaintiff 
is,  doubtless,  entitled  to  recover  in  an  action  of  contract  tlie  money  jiaid  by  him 
for  the  ticket,  and  all  legal  damages  which  he  sustained  by  the  breach  of  the 
contract  implied  by  the  sale  and  delivery  of  the  ticket''  (citing  Wood  v.  Lead- 
bitter,  13  M.  &  W.  838;  Adams  v.  Andrews,  15  Ad.  &  El.  N.  R.  284;  Roffey  v. 
Henderson,  17  Ad.  &  El.  N.  R.  574;  Bridges  v.  Purcell,  1  Dev.  &  Bat.  492;  Foot 
V.  New  Haven  &  Northampton  Co.  23  Conn.  214 ;  Jamieson  v.  Millemann,  3 
Duer,  255). 

By  a  private  act  of  Parliament,  the  shire  hall  of  G.  was  vested  in  the  justices 
of  the  peace  for  the  county,  in  trust  to  allow  courts  of  justice  to  sit  there,  &c., 
and  to  permit  and  suffer  it  to  be  used  for  such  other  public  purposes  as  a  major 
part  of  the  justices  in  session  should  direct.  The  hall  had  always  been  used  for 
the  holding  of  the  county  musical  festivals,  but  there  was  no  evidence  that  the 
justices  had  under  the  act  so  directed  it  to  be  used.  It  was  held  that  the  stew- 
ards of  one  of  the  nhisical  festivals  had  such  a  possession  of  the  hall  that  they 
might  justify  turning  out  an  intruder  (Tliomas  v.  Marsh,  5  Car.  &  P.  59G). 
Vol.  I.— 11 


]  62  ASSAULT    AND    BATTERY.  §  180. 

11.  Forcible  removal  from  i^uhlic  conveyance. 

§  180.  A  corporation  may  become  liable  to  respond  in 
damages  for  an  assault  and  battery  committed  by  its  serv- 
ants in  tlie  execution  of  its  orders  ;  ^  ^'  and  it  may  also  be  so 
charged,  whenever  the  personal  violence  was  the  probable 
and  natural  result  of  the  orders  given,  within  the  rule  that 
a  master  is  liable  for  the  wrongful  acts  of  his  servant  com- 
mitted in  the  master's  employment,  although,  in  so  doing, 
the  servant  has  departed  from  the  instructions  of  his  master.^ 


'  Eastern  R.  R.  Co.  v.  Broom,  6  Exch.  314;  15  Jur.  297;  20  L.  J.  Exch.  196; 
Goffv.  Gt.  North.  R.  R.  Co.  80  L.  J.  Q.  B.  148;  Chicago  &c.  R.  R.  Co.  v.  Mc- 
Carthy, 20  111.  385 ;  Alton  and  Chicago  R,  R.  Co.  v.  Dalby,  19  lb.  353 ;  Jackson 
V.  Second  Av.  R.  R.  Co.  47  N.  Y.  274;  Passenger  R.  R.  Co.  v.  Young,  21  Ohio, 
518. 

'  Higgins  v.  Watervliet  T.  Co.  46  N.  Y.  23 ;  ante,  §  42,  et  seq. 

*  In  Smith  on  Master  and  Servant,  157,  it  is  said  if  the  act  be  done  in  the 
execution  of  the  autliority  given  him  by  his  master,  the  latter  will  be  holucn  for 
wanton  acts,  if  done  in  order  to  perform  his  orders. 

A  person  engaged  in  the  business  of  transporting  passengers  cannot  by  an 
agreement  exempt  himself  from  liability  for  any  injury  resulting  from  any  wilful 
or  wanton  misconduct  of  his  own.  That  a  party  should  be  permitted  to  contract 
that  he  may  with  impunity  inflict  wanton  injury  ujjon  others  is  repugnant  to 
every  sentiment  of  justice  and  propriety. 

The  principle  js,  that  parties  cannot  contract  that  they  themselves  may  with 
impunity  be  guilty  of  wilful  misconduct,  or  of  that  degree  of  recklessness  which 
is  its  equivalent.  To  this  extent,  do  doubt,  carriers  of  passengers  are  precluded 
from  absolving  themselves  by  contract  from  tiieir  responsibilities.  But  the  rule 
has  no  application  to  contracts  exempting  them  from  liability  for  the  acts  of 
third  persons.  There  is  some  difficulty  in  ap])lying  these  principles  to  railroad 
companies,  on  account  of  the  artiticial  nature  of  corporations.  As  they  can  act 
only  through  agents,  it  may  be  said,  on  the  one  hand,  that  every  act  of  their 
authorized  agents,  and,  on  the  other,  that  no  such  act,  is  to  be  regarded  as  a 
direct  act  of  the  corporation.  But  a  distinctive  is,  no  doubt,  to  be  made  be- 
tween the  directors  or  managing  officers  of  a  corporation  and  its  subordinate 
agents.  As  the  former  exercise  all  the  powers  of  the  corporation,  and  are  its 
only  direct  medium  of  communication  with  outside  parties,  they  must,  in  respect 
to  all  its  external  relations,  be  considered  as  identical  with  the  corporation  itself. 
No  contract,  therefore,  can  exempt  a  railroad  company  from  liability  for  the 
wilful  or  wanton  misconduct  or  gross  recklessness  of  its  directors.  The  rule  is 
not  confined  to  common  carriers  and  other  bailees,  but,  from  its  nature,  must  be 
general  in  its  application  (Perkins  v.  The  N.  Y.  Centr.  R.  R.  Co.  24  N.  Y.  R.  196, 
per  Selden,  Ch.  J.) 

There  is  a  degree  of  recklessness  which  can  scarcely  be  distinguished  from  a 
wanton  or  wilful  disregard  of  duty.  It  is  equally  reprehensible,  and  its  conse- 
quences are  in  general  held  to  be  the  same.  It  is  to  this  degree  of  negligence 
to  which  Welles,  J.,  in  Parsons  v.  Mouteath,  13  Barb.  353,  seems  to  refer  when 
he  says  that  "a  contract  which  should  excuse  the  carrier  from  liability  for  dam- 
.  age  or  loss  arising  from  his  own  fraud  or  gross  negligence  would  not  be  en- 
forced." And  see  Jones  on  Bailm,  11 ;  Wells  v.  The  Steam  Nav.  Co.  4  Seld.  375; 
Catlin  v.  The  Springfield  Ins.  Co.  1  Sumn.  434 ;  Thurtell  v.  Beaumont,  1  Bing. 
339. 


§  181.    FORCIBLE   REMOVAL  FROM  PUBLIC   CONVEYANCE.  163 

In  Greenwood  v.  Seymour/  where  the  conductor  of  a  public 
conveyance  ejected  a  passenger  for  what  he  deemed  improj^er 
conduct,  and,  in  doing  so,  committed  acts  of  personal  vio- 
lence to  such  a  degree  as  to  cause  great  injury  to  the  party, 
the  principal  was  held  liable  therefor.  The  argument  was 
pressed  upon  the  court  that  the  conductor  was  a  trespasser, 
and  that  the  principal  should  not  be  held  for  a  trespass  com- 
mitted by  his  servant ;  but  the  court  held  otherwise,  when 
the  act  complained  of  was  done  in  the  execution  of  the 
duties  assigned  to  him  by  his  master.  That  was  an  action  on 
the  case.  And,  in  Sandford  v.  The  Eighth  Av.  R  R.  Co.,^  it 
was  held  that  the  master  was  responsible  for  the  act  of  his 
servant  in  wrongfully  ejecting  a  passenger  from  the  train,  and 
responsible  also  for  any  acts  of  aggravation  in  doing  the  act 
causing  an  injury  to  the  passenger.  This  judgment  was 
based  upon  the  principle  that  a  part  of  the  duties  of  the 
servant  was  to  exclude  from  the  cars  such  passengers  as  re- 
fused to  pay  fare,  or  to  comply  with  the  regulations  adopted 
by  the  company ;  and  that  having  authority  from  the  master 
to  perform  the  acts,  all  such  acts  done  by  the  servant  were 
to  be  regarded  as  done  by  virtue  of  this  authority. 

§  181.  If,  however,  the  person  committing  the  assault 
acted  beyond  the  scope  of  his  authority,  the  corporation  is 
not  liable.  Where,  therefore,  a  station-master  arrested  a 
railway  passenger  in  charge  of  a  horse,  for  not  paying  for  its 
transportation,  and  the  railway  company  could  not  lawfully 
arrest  a  person  for  such  non-payment,  but  only  detain  the 
property,  it  was  held  that,  as  the  station-master  exceeded  his 
authority,  the  company  was  not  responsible.^  A  female  de- 
siring to  get  out  of  a  street  car,  stepped  to  the  platform  and 
asked  the  conductor  to  stop  the  car,  declaring  that  she  would 
not  alight  until  the  car  had  stopped ;  whereupon  he  threw 
her  violently  on  to  the  pavement  and  seriously  injured  her. 


'  4  Law  Times,  N.  S.  (18G1),  835.  "  23  N.  Y.  343. 

'  Poulton  V.  Lond.  &  S.  Western  R.  R.  Co.  3  L.  R.  Q.  B.  534. 


1G4  ASSAULT    AND    BATTERY.  §  182. 

It  was  held  that  the  company  was  not  liable.^  In  an  action 
for  forcibly  ejecting  the  plaintiff  from  railroad  cars,  upon  his 
refusing  to  pay  the  fare  demanded,  the  plaintiff  claimed  that, 
for  the  purpose  of  removing  him  from  the  cars  and  keeping 
him  oif,  the  conductor  called  to  his  assistance  a  servant  of 
the  defendants ;  that  thereupon  a  struggle  ensued  between 
the  plaintiff  on  one  side,  and  the  conductor  and  his  assistant 
on  the  other,  and  that  before  the  termination  of  the  struggle, 
and  immediately  upon  the  j)laintiff's  coming ^from  the  car  to 
the  ground,  the  servant  intentionally  kicked  him  in  the  face. 
The  defendants  claimed  that  such  kick,  if  given,  was  without 
the  knowledge,  and  without  any  particular  or  express  direc- 
tion, of  the  conductor  or  any  other  officer  or  agent  of  the 
company.  The  judge  having  instructed  the  jury  that,  upon 
the  facts  as  claimed  by  the  plaintiff,  the  defendants  were 
liable  for  the  kick,  the  Supreme  Court  granted  a  new  trial 
for  misdirection.^  "^ 

§  182.  A  question  with  respect  to  responsibility  has 
arisen  where  the  order  is  of  such  a  character  that,  if  properly 
done,  it  may  be  executed  in  a  manner  which,  in  law,  would 


'  Isaacs  V.  Third  Av.  R.  R.  Co.  47  N.  Y.  122. 

^  Crocker  v.  The  New  Lond.  &c.  R.  R.  Co.  24  Conn.  249;  and  see  Milwaukee 
&c.  R.  R.  Co.  V.  Fiuney,  10  Wis.  388. 

*■  In  Crocker  v.  The  New  London  &c.  R.  R.  Co.  supra,  the  court  said:  "  Tlie 
jury  should  have  been  instructed,  in  substance,  that  if  the  kick  was  given  by  tlie 
servant  for  the  puqiose  of  keeping  the  plaintiflf  off  the  car,  and  was,  under  the 
circumstances,  but  the  exercise  of  necessary  and  proper  force  for  that  pui'pose, 
the  defendants  were  responsible  for  it,  provided  the  plaintiff  had  been  wrong- 
fully put  out  and  had  a  right  to  re-enter.  But  if  such  kick  was  not  necessary 
and  proper,  for  the  purpose  of  keeping  the  plaintiff'  off,  and  was  given  by  the 
servant  intentionally,  without  the  kuov>ledge  or  direction  of  the  conductor  or 
any  other  officer  or  agent  of  the  company,  the  defendants  were  not  liable  for  it. 
In  this  case,  the  servant  was  called  to  assist  the  conductor,  and  may  be  consid- 
ered as  having  a  general  order  or  command  to  keep  the  plaintiff  off'.  But  that 
order  authorized  the  employment  of  none  but  usual  and  legal  means  for  the  pur- 
pose; and  the  intentional  employment  of  such  an  unusual,  unnecessary  and  un- 
justitiable  measure  as  a  kick  in  the  face,  could  not  have  been  contemplated  by 
the  conductor,  and,  in  the  absence  of  proof,  the  law  will  not  deem  it  authorized 
by  him." 

The  defendant  hired  a  steamboat  for  an  excursion  to  R.,  the  owner's  captain 
navigating  her.  It  was  held  that  the  defendant  did  not  have  such  a  possession 
as  to  justify  him  in  forcibly  turning  out  a  stranger  whom  the  captain  had  allowed 
to  come  on  board  (Dean  v.  Hogg,  10  Bing.  845;  4  M.  &  Scott,  188;  6  Car.  & 
P.  54). 


§  182.    FORCIBLE   REMOVAL   FROM  PUBLIC   CONVEYANCE.         1G5 

constitute  no  breach,  of  the  peace,  nor  subject  any  pai*ty  to 
any  liability  for  executing  it.  In  cases  of  this  character, 
where  the  agent,  in  the  execution  of  the  order,  does  it  with 
such  violence  and  in  such  a  careless  or  wanton  manner  as  to 
inflict  an  unjustifiable  personal  injury  upon  the  person  or- 
dered to  be  seized  and  removed,  the  position  has  sometimes 
been  taken  and  maintained,  by  adjudicated  cases,  that  the 
principal  is  not  liable  at  all,  or,  if  liable,  that  a  claim  for 
damages  can  only  be  enforced  in  an  action  on  the  case.^  The 
more  consistent  rule  would  seem  to  be,  that  where  a  corpora- 
tion gives  an  order  to  a  servant  to  do  an  act  which  implies 
the  use  of  force  and  personal  violence  to  others,  if  the  serv- 
ant, in  the  execution  of  that  service,  goes  beyond  proj^er 
limits  as  to  the  use  of  force,  and  commits  a  trespass  by  unjus- 
tifiable violence,  and  inflicts  an  injury  by  a  blow  or  a  kick 
upon  the  person  attempted  to  be  removed,  the  corporation 
will  be  liable  to  an  action  of  trespass  therefor.^  In  Hewett 
V.  Swift,'^  the  president  of  a  railroad  comj)any  had  directed 
the  servant  of  the  company  to  keep  boys  out  of  the  depot, 
pursuant  to  a  regulation  of  the  comj)any,  and  the  servant,  in 
removing  a  boy  about  fourteen  years  of  age,  who  refused  to 
leave,  kicked  and  severely  injured  him.  It  was  held  that  a 
joint  action  of  trespass  might  be  maintained  against  the 
company  and  its  servant.  In  an  action  against  a  railway 
company  for  the  act  of  the  conductor  in  ejecting  the  plaintiff 
from  the  cars,  the  judge  at  the  trial  in  the  Common  Pleas 
charged  the  juiy  that  if  the  conductor,  in  j)utting  the  plaintiff" 
out  of  the  cars,  acted  by  direction  of  the  company,  the  com- 
pany were  liable ;  but  that  'if  the  company  directed  the  con- 
ductor to  put  out  of  the  cars  j^tassengers  who  had  not  paid 
their  fare,  and  he  put  out  passengers  who  had  paid  their 
fare,  the  company  would  not  l^e  responsible  for  his  acts.     A 


'  Hibljard  v.  The  K  Y.  &  Erie  R.  R.  Co.  15  N.  Y.  455 ;  St.  Louis,  Alton  & 
Chicago  R.  K.  Co.  v.  Dalby,  19  111.  353. 

"  Ramsden  v.  Boston  &c.  R.  R.  Co.  104  Mass.  117;  Phila.  &  Reading  R.  R.  v. 
Derby,  14  How.  4G8.     ' 
'  3  Allen,  420. 


166  ASSAULT  AND  BATTERY.  §  183. 

verdict  Laving  been  found  for  the  plaintiff,  tlie  Supreme 
Court,  in  refusing  to  disturb  it,  said :  "  The  instructions  as 
to  the  liability  of  the  defendants  for  the  acts  of  their  servant 
were  favorable  to  the  corporation.  The  only  point  upon 
which  a  doubt  might  be  suggested,  would  be  upon  the 
second  clause  of  the  instructions,  that  if  the  company  author- 
ized the  conductor  to  put  out  of  the  car  passengers  who  had 
not  paid  their  fare,  and  he  put  out  persons  who  had  paid 
their  fare,  the  company  Avould  not  be  responsible  for  his  acts. 
If  a  passenger,  who  has  paid  his  fare  and  conducts  himself 
well,  is  removed  by  the  servant  of  the  company  having 
charge  and  control  of  the  train,  it  is  difficult  to  see  how  the 
company  could  escape  responsibility  for  his  act."  ^  *  It  has 
been  held  that  a  railroad  company  is  liable  for  blows  unjus- 
tifiably struck  by  the  conductor's  assistants  in  ejecting  a  per- 
son from  the  train,  notwithstanding  the  blows  are  struck  con- 
trary to  the  conductor's  orders.^ 

§  183.  The  right  and  duty  of  railway  companies  to  estab- 
lish and  enforce  reasonable  regulations  for  the  government 

'  Moore  v.  Fitchburg  K.  R.  4  Gray,  465. 

""  Coleman  v.  N.  Y.  &  New  Haven  E.  R.  Co.  106  Mass.  160. 

*  In  an  action  against  a  railway  company  for  an  assault,  laying  as  special 
damage  the  loss  of  a  pair  of  race-glasses,  which  the  plaintiff  left  behind  him  in 
a  railway  carriage  when  he  was  forcibly  removed  therefrom,  with  a  count  in 
trover,  it  appeared  that  the  plaintiff"  was  traveling  with  other  passengers  on  a 
railroad,  and  that,  upon  the  tickets  being  collected,  there  was  found  to  be  a 
ticket  short;  that  the  plaintiff' was  charged  by  the  conductor  of  the  train  with 
not  having  a  ticket,  and,  on  his  refusal  to  pay  the  fare  or  leave  the  carriage,  he 
was  put  out,  without  any  unnecessary  violence,  by  the  oflScers  of  the  company, 
although  he,  in  fact,  had  a  ticket.  There  being  no  evidence  that  the  glasses 
had  come  to  the  possession  of  any  of  the  company's  servants,  it  was  held  that 
the  plaintiff  could  not  recover  for  their  loss  (Glover  v.  The  London  &  South 
Western  R.  R.  Co.  3  L.  R.  Q.  B.  24).  ♦Cockburn,  C.  J. :  "The  case  would 
be  very  diff"erent,  in  my  judgment,  if  the  glasses  had  fallen  from  the  plaintiff's 
person  as  the  immediate  result  of  any  violence  offered  to  him.  But  the  jury 
must  be  taken  to  have  negatived — and  rightly,  as  it  seemed  to  me — any  violence 
beyond  that  necessary  to  remove  the  plaintiff  from  the  carriage,  so  that  it  was 
not  the  case  of  a  man  being  dragged  out  of  a  carriage  under  circumstances  which 
rendered  it  impossible  for  him  to  take  the  property  with  him  which  he  had 
under  his  own  personal  protection.  *  *  *  j^q  doubt,  if  he  had  applied  to  be 
allowed  to  get  the  glasses,  or  asked  one  of  the  passengers  to  hand  them  to  him, 
this  would  have  been  done.  He  has,  therefore,  only  himself  to  blame  that  the 
glasses  were  left  in  the  carriage,  and  the  loss  was  not  the  necessary  consequence 
of  the  defendant's  act,  but  owing  to  the  plaintiff's  own  negligence  or  careless- 
ness. This  head  of  damage  is  therefore  too  remote,  and  the  plaintiff  cannot, 
recover  it." 


§184.    FORCIBLE   REMOVAL   FROM   PUBLIC   CONVEYANCE.         1C7 

of  their  lines,  have  been  frequently  recognized  by  the  courts 
in  this  country.  The  safety  and  security  of  the  traveling 
public,  as  well  as  the  interest  of  the  roads  themselves,  require 
that  such  right  and  duty  should  exist  and  be  enforced.  Upon 
that  ground,  it  has  been  held  that  the  company  and  its  servants 
may  not  only  exclude  those  who  refuse  to  pay  their  fare,  or 
to  comply  with  such  reasonable  regulations  as  are  made  for 
their  government,  but  that  they  may  also  rightfully  inquire 
into  the  habits  or  motives  of  those  who  claim  the  right  of 
passage.  ^  * 

§  184.  When  a  person  buys  a  railroad  ticket,  the  ticket 
implies  a  contract  that  he  is  to  be  carried  in  the  usual  man- 
ner in  which  passengers  are  carried  who  have  tickets  of  the 
same  kind,  although  the  purchaser  is  ignorant  of  the  rules 
and  regulations  of  th«  company.^  A  railroad  company  had 
two  lines  of  road  between  the  same  points,  on  the  longer  of 
which  more  was  charged  than  on  the  other.  A  person  hav- 
ino;  bousrht  a  ticket  for  the  shorter  route,  took  a  train  on  the 
longer  one.  The  conductor  told  him  that  he  could  only  be 
taken  to  a  certain  point  by  that  train,  unless  he  paid  addi- 
tional fare,  which  refusing  to  do,  he  was  put  off.  It  was  held 
that  the  person  was  lawfully  ejected  from  the  train.  ^  AVhere 
the  condition  of  a  commutation  ticket  was  that  it  should  be 
shown  to  the  conductor  on  every  passage,  and  if  not  shown 
the  regular  fare  should  be  paid,  and  the  holder  of  the  ticket 
by  mistake  left  it  at  home,  and  so  told  the  conductor,  and 
refused  to  pay  the  fare,  it  was  held  that  he  was  rightfully 
ejected  from  the  cars.  *  In  a  case  subsequently  tried  in  the 
same  court,  the  plaintiff  was  a  commuter  on  the  New  York 


'  Stephen  v.  Smith,  29  Vt.  160,  per  Isham,  J.,  citing  Jencks  v.  Coleman,  3 
Sumner,  221,  and  Cora.  v.  Power,  7  Mete.  596. 

=  Cheney  v.  The  B.  &  M.  R.  R.  Co.  11  Mete.  121. 
=  Adwin  V.  N.  Y.  &c.  R.  R.  Co.  60  Barb.  590. 

*  Downs  V.  N.  Y.  &c.  R.  R.  Co.  3G  Conn.  287. 

*  The  want  of  instructions  in  relation  to  the  right  of  a  railroad  conductor  to 
remove  a  passenger  from  the  cars  if  intoxicated  or  using  profane  language,  is  not 
the  subject  of  exception,  unless  the  instruction  was  asked  for,  and  refused  at  the 
trial  (Moore  v.  Fitchburg  R.  R.  4  Gray,  465). 


168  ASSAULT  AND  BATTERY.        §§  185,  186. 

and  New  Haven  Railroad,  and  was  known  to  be  sucli  by  the 
conductor ;  and  the  latter  knew  that  the  plaintiff's  ticket  was 
still  good.  The  plaintiff  had  his  ticket  when  it  was  de- 
manded, but  could  not  find  it,  and  he  so  informed  the  con- 
ductor, and  refusing  to  pay  the  fare,  he  was  ejected  from  the 
train.  It  was  held  that  the  plaintiff  was  entitled  to  ride  as 
long  as  there  was  any  reasonable  expectation  of  finding  the 
ticket  during  the  trip ;  and  that  if  the  defendants  had  the 
right  to  eject  the  plaintift'  from  the  train,  they  had  no  right 
to  do  it  elsewhere  than  at  some  regular  station.  '^ 

§  185.  When  a  railroad  ticket  contains  no  special  condi- 
tion, but  by  a  rule  of  the  company,  such  a  ticket  entitles  the 
holder  to  ride  only  on  certain  trains,  of  which  rule  he  is  un- 
informed, he  cannot  lawfully  be  ejected  from  a  train  which 
he  has  entered  contrary  to  such  rule.  ^  Where,  however,  the 
train  does  not  stoji  at  the  station  for  which  the  passenger  has 
purchased  his  ticket,  though  it  has  on  previous  occasions 
sometimes  stopped  there,  and  the  passenger  refuses  to  pay 
additional  fare  to  the  regular  stopping  place,  he  may  law- 
fully be  ejected.  ^ 

§  186.  A  person  on  a  railroad  train  who  unreasonably 
refuses  to  pay  his  fare,  may  be  ejected  forthwith  without 
being  taken  to  a  regular  station.  *  To  require  his  being  put 
oft"  at  some  station  on  the  road  "would  compel  railroad  com- 
panies to  carry  a  passenger  to  the  station  next  to  the  one  at 
which  he  entered  the  train,  which  might,  and  doubtless  would 
often  be  the  very  point  to  which  he  desired  to  be  taken,  and 
if  the  passenger  wei*e  unknown  to  the  conductor,  the  com- 
pany would  be  without  remedy."^  But  in  Vermont,  the 
statute  ^  provides  that,  "  If  any  person  shall  refuse  to  pay  his 
fare,  or  shall  be  disorderly  or  drunk,  or  refuse  to  comply 


*  Maples  V.  N.  Y.  &  New  Havea  R.  R.  Co.  38  Conn.  557. 
""  Moroney  v.  Old  Colony  &c.  R.  R.  Co,  306  Mass.  153. 

'  Fink  V.  Albany  &c.  R.  R.  Co.  4  Lans.  147. 

*  McClure  v.  Pliila.  &c.  R.  R.  Co.  34  Md.  532. 

*  Ibid,  per  Grasou,  J.  «  Ch.  26,  §  52. 


§  188.    FORCIBLE   REMOVAL   FROM   PUBLIC   CONVEYANCE.         1C9 

with  all  the  reasonable  regulations  of  the  corporation  for  the 
government  of  the  conduct  of  passengers,  it  shall  be  lawful 
for  the  conductor  of  the  train,  and  the  servants  of  the  cor- 
poration, to  put  him  out  of  the  cars  at  any  usual  stopping 
place  the  conductor  may  elect."  Although  the  foregoing 
statute  does  not  expressly  negative  the  right  or  forbid  the 
exercise  of  the  power,  at  any  other  place  on  the  line  of  the 
road,  yet  by  implication  it  restricts  it  to  some  one  of  the 
stations  or  usual  stopping  places. 

§  187.  The  right  of  a  railway  conductor  to  expel  a  per- 
son from  the  cars  for  the  reason  that  he  will  not  pay  his  fare 
when  asked  to  do  so,  cannot  lawfully  be  exercised  in  a  man- 
ner regardless  of  all  circumstances.  Where  a  passenger  was 
carried  beyond  the  2-)lace  to  which  he  had  paid  his  fare,  and 
put  off  at  a  station  live  miles  further  on,  in  consequence  of 
which  he  was  compelled  to  walk  back  through  the  rain, 
whereby  his  health  was  seriously  injured,  it  was  held  that 
the  company  was  liable  therefor.  ^  And  where  the  conductor 
of  a  freight  train  uj^on  leaving  the  station  neglected  to  ascer- 
tain whether  there  were  any  passengers  on  the  train  who 
had  not  procured  tickets,  and  after  proceeding  a  mile  and  a 
half  to  a  place  where  there  was  no  station,  ejected  a  passen- 
ger, knowing  him  to  be  ill,  it  was  held  that  a  verdict  in  favor 
of  the  passenger  for  $1,150  was  not  excessive.^ 

§  188.  A  raih'oad  company  may  be  made  to  respond  in 
damages  for  forcibly  ejecting  a  person  from  the  cars  while 
the  train  is  in  motion,  notmth standing  such  person  has  no 
right  on  the  train.  ^  Where,  in  an  action  for  injury  caused 
by  being  forcibly  ejected  from  a  railroad  car  while  in  motion, 
it  was  proved  that  the  conductor  ordered  the  plaintiff  to 
leave  the  car,  and  at  the  same  time  made  such  a  display  of 
force  as  to  cause  him  to  believe  that  he  would  be  put  off,  and 
that  he  thereupon  jumped  from  the  car,  it  was  held  that  he 

'  Mobile  &c.  R.  R.  Co.  v.  McArthur,  43  Miss.  180. 
'^  Illinois  &c.  R.  R.  Co.  v.  Sutton,  53  111.  397 
'  Law  V.  Illinois  &c.  R.  R.  Co.  32  Iowa,  534. 


170  ASSAULT    AND    BATTERY.  §§  189,  190. 

> 

was  entitled  to  recover.  -^  In  a  case  in  New  York  ^  it  was 
proved  that  the  conductor  of  the  defendants'  car,  ^vithout 
arresting  its  motion,  seized  the  phiintiif's  intestate,  and  forci- 
bly ejected  him.  The  danger  attending  such  an  act  was  en- 
hanced by  other  circumstances.  It  was  in  the  night,  and  a 
high  bank  of  snow  was  thrown  upon  each  side  of  the  track. 
No  injuiy  might  have  resulted  if  the  expulsion  had  taken 
place  from  the  rear  instead  of  the  front  of  the  car.  As  a 
direct  consequence  of  the  conductor's  act,  the  passenger  was 
injured  so  that  he  died ;  and  the  act  itself,  under  the  circum- 
stances, being  necessarily  attended  with  great  danger,  was 
held  to  be  without  legal  justification. 

§  189.  It  is  scarcely  necessary  to  observe  that  one  may 
lawfully  resist  an  attempt  to  expel  him  from  a  railroad  train 
in  rapid  motion,  although  he  be  liable  to  expulsion.  As  the 
refusal  of  a  passenger  to  pay  fare  will  not  excuse  a  homicide, 
so  it  fails  to  justify  any  act  which  in  itself  puts  human  life 
in  peril ;  and  the  passenger  has  the  same  right  to  repel  an 
attempt  to  eject  him,  when  such  attempt  is  accompanied  with 
hazard,  that  he  has  to  resist  a  direct  attempt  to  take  his  life.^ 
So,  if  he  be  ejected  with  unjustifiable  violence,  he  is  not 
bound  to  give  the  parties  ejecting  him  notice  of  a  secret  in- 
firmity for  the  purpose  of  inducing  them  to  lessen  the  vio- 
lence ;  though  it  might  be  otherwise,  if  they  were  only 
employing  reasonable  force  to  expel  him.^ 

§  190.  The  special  condition  which  is  frequently  printed 
on  railroad  tickets  in  reference  to  the  time  of  their  use  has 
given  rise  to  considerable  controversy.*     Where  such  cases 

'  Kline  v.  Central  &c.  R.  R.  39  Cal.  587. 

■"  Sandford  v.  The  Eighth  Av.  R.  R.  Co.  23  N.  Y.  343. 

^  Sandford  v.  The  Eighth  Av.  R.  R.  Co.  supra. 

'  Coleman  v.  N.  Y.  &  New  Haven  R.  R.  Co.  106  Mass.  IGO. 

*  A  railroad  company  is  under  a  legal  obligation  to  permit  any  persons  to  get 
upon  their  cars,  and  to  transport  them  to  any  place  they  desire  to  go  upon  the 
line  of  the  road,  where  the  train  is  accustomed  to  stop,  upon  the  payment  of  the 
usual  fare,  and  a  compliance  with  all  reasonable  and  proper  rules  and  regulations 
established  by  the  company  for  the  safety  and  convenience  of  the  public  and  the 
proper  government  and  management  of  the  road  (Harris  v.  Stevens,  31  Vt.  79; 
Com.  V.  Powers,  7  Mete.  596.) 


§  190.     FORCIBLE   REMOVAL  FROM  PUBLIC   CONVEYANCE.  171 

were  free  from  wrongful  intention  on  the  part  of  the  passen- 
gers, the  courts  Avere  at  first  inclined  to  give  to  all  such 
exceptions  and  reservations  a  liberal  construction  in  favor  of 
public  travel.  But  the  later  decisions  ,have  adopted  a  more 
risrid  rule. 

In  an  action  for  assault  and  battery  against  a  railroad 
conductor  for  forcibly  ejecting  the  plaintiff  from  the  cars,  it 
appeared  that  the  plaintiff  took  a  seat  in  one  of  the  passen- 
ger cars  on  the  New  York  and  Erie  railroad  at  Corning  for 
Elmira,  and  that  two  or  three  miles  east  of  Corning  he  was 
forcibly  put  oft'  the  train  by  the  conductor  and  the  other  de- 
fendants, employees  on  the  cars.  The  only  cause  alleged  for 
the  removal  of  the  plaintiff'  from  the  cars  was  his  refusal  to 
pay  to  the  conductor  his  fare  for  that  trip.  It  was  proved 
that  when  the  conductor  demanded  the  fare,  the  plaintiff 
produced  and  offered  to  him  a  ticket  in  the  words  and 
figures  following :  "  New  York  and  Erie  Railroad,  Corning 
to  Elmira.  Please  keep  this  in  sight.  Good  this  trip  only. 
Oct.  19,  1854.  No.  46.  G.  L.  Dunlap."  The  ticket  was  not 
mutilated,  and  the  plaintiff  told  the  conductor  that  his  wife 
had  purchased  it  at  the  ofiice,  and  that  it  had  not  been  used 
by  any  one.  The  conductor  refused  to  receive  the  ticket,  on 
the  ground  that  it  was  dated  several  days  previous.  The 
judge  before  whom  the  cause  was  tried,  nonsuited  the 
plaintiff,  ruling  that  the  ticket  was  only  evidence  of  the 
plaintiff' 's  right  to  ride  in  the  next  passenger  train  going 
from  Corning  to  Elmira  after  the  purchase  of  the  ticket ; 
or,  at  all  events,  that  the  right  was  limited  to  the  day  on 
which  the  ticket  bore  date,  and  that  the  ticket  could  not 
be  used  on  a  subsequent  day.  The  general  term  of  the 
Supreme  Court,  hoAvever,  held  that  the  ticket  prima  facie 
was  evidence  of  the  plaintiff' 's  right  to  that  passage  or  trip, 
and  that  the  conductor  had  no  right  to  demand  fare  and 
refuse  the  ticket  when  oftered ;  that,  therefore,  the  plaintiff  was 
put  off  the  train  wrongfully,  and  the  action  well  brought.^  ^" 

'  Pier  V.  Finch,  24  Barb.  514;  s.  c.  29  lb.  170;  Northern  R.  R.  Co.  v.  Page, 
22  Barb.  180. 

*  In  Pier  v.  Finch,  supra^  the  court  said :    "  The  case  is  not  embarrassed  by 


172  ASSAULT  AND  BATTERY.  §  190. 

Beebe  v.  Ayres/  was  an  action  against  a  railroad  conduct- 
or for  forcibly  ejecting  the  plaintiif  from  tbe  cars.  It  ap- 
peared that  the  plaintiff  purchased  a  ticket  at  Newburgh, 
which  entitled  him  to  ride  from  that  place  in  a  passenger 
car  on  the  New  York  and  Erie  Railroad  to  Addison.  The 
words,  "  Good  this  trip  only,"  were  on  the  ticket ;  it  was 
dated  Sept.  10,  1856,  and  the  letters  E,  D,  S,  W  were  on 
the  corners  of  it.  These  letters,  according  to  the  rules  of  the 
comj)any,  were  to  be  torn  off  by  the  conductors  of  the  train 
on  which  the  plaintiff  should  ride  as  follows :  The  conductor 
on  the  eastern  division  of  the  road  was  to  tear  oft'  the  letter 
E ;  the  one  on  the  Delaware  division  was  to  tear  off  the  let- 
ter D ;  and  the  one  on  the  Susquehanna  division  was  to  tear 

any  evidence  of  the  custom  of  the  company  or  of  the  conductors  of  the  trains, 
but  turns  wholly  on  the  construction  to  be  given  to  the  ticket.  The  possession 
of  the  ticket  by  the  plaintiff  was  jn'ima  facie  evidence  that  he  had  paid  the 
regular  price  for  it,  and  of  his  right,  at  some  time,  to  be  transported  from  Corn- 
ing to  Elmira  on  some  passenger  train ;  and  as  it  was  unmutilated,  the  presump- 
tion is  that  it  had  never  been  used  for  that  purpose.  The  ticket  then  in  the 
plaintiff's  hands,  and  on  which  he  claimed  the  right  to  ride  on  that  occasion, 
was  evidence  of  the  agreement  or  undertaking  of  the  corporation  to  transport 
him  to  Elmira  on  its  passenger  cars,  for  a  consideration  by  him  paid.  And  the 
precise  question  to  be  determined  is  whether  upon  the  face  of  the  ticket,  and  by 
its  terms,  the  undertaking  was  to  carry  him  on  any  passenger  train  on  which 
they  could  conveniently  transport  him,  and  which  he  might  choose  to  take  at 
any  time  subsequent  to  the  purchase  of  such  ticket;  or  whether  the  undertaking 
was  limited  to  some  particular  train,  or  within  some  definite  period  of  time.  It 
does  not  appear  at  what  time  the  ticket  was  purchased  by  the  plaintiff,  though 
the  presumption,  I  suppose,  is  that  it  was  purchased  at  some  time  on  the  day  on 
which  it  bears  date,  but  not  at  any  particular  hour  of  the  day.  It  may  have 
been  purchased,  for  aught  we  can  know  or  presume,  for  this  purpose  before 
either  of  the  three  trains  passed  eastward  on  that  day,  or  after  they  had  all 
passed.  The  words  which  are  supposed  to  limit  the  undertaking  to  some 
specific  train  of  cars,  or  period  of  time,  and  the  only  words  which  are  claimed 
to  have  that  effect,  are  '  Good  this  trip  only.'  It  is  quite  apparent,  I  think,  that 
these  words  have  no  reference  to  any  particular  day  or  hour  whatever.  They  do 
not  relate  to  time,  but  to  a  journey.  *  '*  *  When  the  purchaser  commences 
his  trip,  and  becomes  a  passenger,  the  ticket  is  good  for  that  trip  and  no  other; 
and  at  the  end  of  the  trip  the  conductor  has  the  right  to  demand,  and  the  pas- 
senger is  bound  to  surrender,  the  ticket.  The  i:)assenger  cannot  use  it  for  any 
other  trip,  and  has  no  longer  any  right  to  the  possession  of  it.  This  construc- 
tion gives  full  effect  to  the  language,  and  works  no  injury  to  any  one.  *  *  * 
It  will  be  seen,  I  think,  that  'this  trip,'  from  Corning  to  Elmira,  refers  much 
more  naturally  and  properly  to  the  journey  of  the  plaintiff"  from  one  point  to  the 
other  than  to  the  passage  of  any  particular  train  of  cars  over  the  whole  road. 
It  limits  the  plaintift"'s  right  of  passage  to  the  triji  which  he  commences  and 
undertakes  to  make  under  the  contract,  and  his  right  to  the  possession  of  the 
ticket,  to  the  time  when  It  is  customary  to  surrender  it  according  to  the  usages 
•on  that  road." 
- 1  28  Barb.  375. 


§  190.    FOECIBLE  REMOVAL   FROM   PUBLIC   CONVEYANCE.         173 

off  the  letter  S.  The  plaintiff,  by  virtue  of  the  ticket,  rode 
in  the  afternoon  and  night  of  the  16th  of  September,  1856, 
upon  the  railroad  as  far  west  as  Deposit,  on  the  Delaware 
division,  and,  before  he  arrived  there,  the  conductors  on  the 
train  on  which  he  rode  had  torn  the  letters  E  and  D  off  of 
the  ticket.  He  staid  at  Deposit  until  the  following  day, 
because,  as  he  claimed  at  the  trial,  the  conductor  on  the 
eastern  division  of  the  road  had  told  him  he  could  stop  there 
and  it  would  be  all  right.  But  he  did  not  have  the  conduct- 
or on  the  Delaware  division  indorse  anything  upon  the 
ticket  to  show  his  right  to  stop  at  Deposit,  as  he  should 
have  done  by  the  rules  of  the  company.  In  the  forenoon  of 
the  next  day,  the  plaintiff  rode  on  an  emigrant  train,  by 
virtue  of  the  ticket,  without  objection  from  the  conductor  of 
the  train,  to  Susquehanna,  where  another  conductor  took  the 
train.  He  then  rode  from  that  place,  on  the  same  train,  to 
Great  Bend,  but  before  he  arrived  there,  the  conductor  who 
took  that  train  at  Susquehanna  tore  the  letter  S  off  the  ticket 
and  handed  it  back  to  the  plaintiff'.  The  j^laiutiff  left  the 
emigrant  train  at  Great  Bend,  and  waited  there  until  the  ex- 
press train  came  up,  and  then  got  upon  that.  He  did  this, 
as  he  testified  upon  the  trial,  because  the  conductor  of  the 
emigrant  train  told  him  if  he  was  in  a  hurry  he  had  better 
do  so.  After  the  express  train  left  Great  Bend,  the  defend- 
ant, as  conductor,  demanded  fare  of  the  plaintiff,  who  pre- 
sented the  ticket  to  him,  with  the  letter  S  torn  oft'.  The 
defendant  refused  to  accept  the  ticket,  and  told  the  plaintiff 
that  unless  he  paid  the  usual  fare  to  him  he  should  put  him 
off  the  train  ;  and  the  plaintift',  refusing  to  leave  the  cars  or 
pay  the  fare,  was  forcibly  ejected.  A  verdict  having  been 
found  for  the  plaintift',  at  the  circuit,  subject  to  the  opinion 
of  the  court  at  general  term,  it  was  held  that  the  defendant 
was  entitled  to  judgment. 

It  has  been  recently  decided  in  New  York,  that  a  rail- 
road ticket  having  on  its  face  "  Good  for  this  day  only," 
with  the  date,  entitles  the  holder  to  ride  in  the  company's 
cars  only  on  that  day,  notwithstanding  the  company's  ticket 


174  ASSAULT  AXD  BATTERY.  §  191. 

agent  after  the  ticket  is  bought,  says  that  it  will  be  good  at 
any  time  thereafter.^  And  in  Maryland  it  has  been  held  that 
a  person  who  has  bought  a  through  ticket,  over  connecting 
railways,  has  no  right  to  remain  over  at  an  intermediate 
point  and  afterward  take  another  train  and  proceed  to  his 
original  destination,  without  further  payment.^ 

§  191.  Where  it  is  a  rule  of  a  raili'oad  company  that  pas- 
sengers soon  after  starting  shall  exchange  their  tickets  with 
the  conductor  for  checks,  the  law  will  imply  that  the  con- 
tract on  the  part  of  the  company  is  to  convey  persons  over 
their  road  provided  they  surrender  their  tickets  to  the  con- 
ductor when  demanded,  as  required  by  the  custom  of  the 
road^  Under  this  contract,  a  person  will  not  be  entitled  to 
his  passage  in  the  cars  without  the  surrender  of  his  ticket ; 
and  his  refusal  to  deliver  up  his  ticket  when  demanded  will 
justify  the  conductor  in  exacting  from  him  his  fare  in  cash, 
and  on  his  refusal  to  pay  his  fare,  in  putting  him  out  of  the 
cars.  The  ticket  may  be  regarded  as  expressing  only  a  part 
of  the  agreement  entered  into  between  the  parties.  It  does 
not  purport  on  its  face  to  be  a  complete  agreement.  In  all 
such  cases,  the  other  parts  of  the  agreement  may  be  proved 
by  parol,^  In  Loring  v.  Alborn,*  tried  in  the  Court  of  Com- 
mon Pleas  of  Massachusetts,  Loring,  a  passenger  in  raili'oad 
cars  on  the  Boston  and  Maine  railroad,  sued  Alborn,  the 
conductor  of  the  train,  for  putting  him  out  of  the  cars,  on 
his  refusing  to  give  up  his  ticket.  It  was  a  rule  of  the  road 
that  passengers  must  immediately,  after  the  starting  of  the 
train,  surrender  their  tickets  to  the  conductor.  Mellen,  J., 
before  whom  the  cause  was  tried,  ruled  that  this  regulation 
of  the  road  w^as  reasonable ;  and  that  the  plaintiff  had  no 
right  to  retain  his  ticket  until  he  got  near  the  end  of  his 
route,  even  if  he  had  not  previously  known  of  the  existence 

'  Boice  V.  The  Hudson  River  R.  R.  Co.  Gl  Barb.   611;  Barker  v.  Coflin,   31 
lb.  556. 

^  McClure  v.  Phila.  &c.  R.  R.  Co.  34  Md.  542. 
=  The  Northern  R.  R.  Co.  v.  Page,  23  Barb.  130. 
'  4  Cush.  608;  1  Law  R.  N.  S.  461. 


§  192.    FORCIBLE   REMOVAL   FROM   PUBLIC   CONVEYANCE.         175 

of  such  regulation  ;  and  that  on  his  refusal  to  give  up  his 
ticket,  the  conductor  was  justified  in  ejecting  him  from  the 
cars.  The  case  was  carried  to  the  Supreme  Court,  and 
Fletcher,  J.,  in  delivering  the  opinion  of  the  latter  court,  took 
no  exception  to  the  ruling  of  Judge  Mellen,  in  relation  to  the 
right  of  the  conductor  to  eject  the  plaintiif  from  the  cars. 

§  192.  The  courts  have  held  that  the  discrimination  in 
fare  (by  a  railroad  company)  when  tickets  are  purchased  at 
the  several  stations,  or  when  paid  to  the  conductor  in  the 
cars,  is  reasonable,  as  affording  proper  checks  upon  its  ac- 
counting officers,  and  which  they  have  a  right  to  enforce. 
While  the  law  requires  of  the  company  the  adoption  of  such 
regulations  as  are  necessary  for  the  safety  and  convenience 
of  passengers  in  their  trains,  they  have  also  the  right  to 
adopt  such  reasonable  regulations  as  are  necessary  for  their 
own  security ;  and  those  regulations  are  to  be  mutually  ob- 
served. If  they  are  not  comj^lied  with  by  passengers,  the 
company  may  not  only  refuse  them  admission  within  the 
cars,  but  if  they  are  within  they  may  remove  them.^  Hil- 
liard  v.  GrookP  was  an  action  against  a  railway  conductor 
for  forcibly  ejecting  the  plaintiff  from  the  train.  It  was 
proved  that  the  plaintiff  took  his  seat  as  a  passenger,  about 
seven  o'clock  in  the  evening,  in  the  month  of  January ;  that 
shortly  after  the  starting  of  the  train,  the  defendant  called 
on  the  plaintiff  for  his  ticket ;  that  the  plaintiff,  not  having 
a  ticket,  offered  thirty-five  cents  for  the  fare,  and  upon  the 
defendant's  telling  him  that  the  fare  was  forty  cents,  the 
plaintiff  refused  to  pay  more  than  thirty-five ;  that  the  de- 
fendant soon  afterwards  demanded  of  the  plaintiff  the  same 
fare,  tellin  ■;  Iiim  that  unless  he  paid  it,  he  should  be  obliged 
to  remove  him  from  the  car ;  and  that  the  plaintiff  still  re- 
fusing to  pay  the.  forty  cents,  the  defendant  stopped  the 
train,  and  with  the  help  of  the  engineer,  forcibly  put  the 
plaintiff  out  of  the  car,  and  went  on,  leaving  the  plaintiff  on 
the  track.      The  judge  before  whom  the  cause  was   tried, 

'^Stephen  v.  Smith,  29  Vt.  160.  '  34  N.  Hamp.  230. 


176  ASSAULT    AND    BATTERY.  §  193. 

charged  tlie  jury  that  the  defendant  was  not  justified  in 
ejecting  the  plaintiff  from  the  car,  although  he  was  the  con- 
ductor of  the  train,  and  the  plaintiff  unreasonably  refused  to 
pay  the  additional  fare;  and  a  verdict  having  been  found  for 
the  plaintiff',  it  ^vas  set  aside  for  misdirection.'^' 

§  193.  Where  the  regulations  of  a  railroad  company  re- 
quire that  passengers  shall  purchase  their  tickets  before  en- 
tering the  cars,  it  is  obviously  the  duty  of  the  company  to 
keej)  their  ticket  office  open  until  the  actual  departure  of  the 
train,  although  the  train  be  late.  It  would  seem  to  follow 
that  if  the  company  close  their  office  prior  to  that  time,  pas- 
sengers who  afterward  apply  for  tickets  in  season  to  enter 
the  cars  with  safety,  cannot  be  lawfully  charged  additional 
fare;  and  it  has  been  so  decided  in  New  York.^  But  it  has 
been  held  differently  in  Connecticut.  In  Crocker  v.  New 
London  <fec.  R.  E.  Co.,^  which  was  an  action  for  forcibly 
ejecting  the  plaintiff  from  a  railroad  car,  it  appeared  that  the 
defendants  w^ere  a  railroad  corporation  running  regular  trains 
of  cars  on  their  road  between  Norwich  and  New  London ; 
and  that  they  had  given  public  notice  of  a  rule  or  regulation, 
that  the  fare  for  passengers  should  be  fifty  cents,  if  it  was 
paid  and  a  ticket  procured  by  the  passenger  before  taking 
his  seat  in  the  cars,  otherwise  it  should  be  fifty-five  cents. 
The  plaintiff  took  a  seat  in  the  car  without  a  ticket,  and 
wlien  called  ujion  l:)y  the  conductor  of  the  train,  offered  to 
pay  fifty  cents,  and  refused  to  j)aj  any  more.  Upon  the 
trial,  he  claimed  to  have  proved  that  he  went  to  the  office  of 
the  company  where  tickets  were  usually  sold,  at  a  reasonable 
time  before  the  starting  of  the  train,  to  procure  a  ticket, 
which  he  was  ready  to  pay  for;  that  he  found  the  office 

'  Porter  v.  N.  Y.  Centr.  E.  R.  Co.  34  Barb.  353.  '  24  Conn.  249. 

*  In  Hilliard  v.  Goold,  supra,  the  Supreme  Court,  in  granting  a  new  trial,  said : 
"We  are  clearly  of  opinion  that  the  jury  should  have  been  instructed  to  say,  upon 
all  the  evidence  presented  before  them,  whether  the  defendant  did  his  duty, 
under  his  authority  as  a  conductor  under  the  statute,  in  ejecting  the  plaintiff 
from  the  cars  at  the  time  and  place,  and  in  the  manner  he  was  shown  to  have 
done  it.  Instead  of  this,  as  tliey  were  instructed  that  the  plaintiff  was  entitled 
to  their  verdict,  as  a  matter  of  law,  leaving  only  the  amount  of  damages  to  be 
determined  by  them,  the  verdict  must  be  set  aside.'' 


§  194.  EIGHT   OF   ACCESS   TO  RAILWAY  DEPOT.  177 

closed,  and  that  there  was  no  person  at  the  office  of  whom  a 
ticket  could  be  obtained,  at  that  time,  or  afterward,  until  after 
the  departure  of  the  train,  and  that  he  informed  the  conductor 
of  these  facts  at  the  time  his  fare  was  demanded.  Tlie  judge 
charged  the  jury  in  substance,  that  if  the  facts  were  as 
claimed  by  the  plaintiff,  he  had  a  right  to  retain  his  seat, 
and  the  defendants  were  liable  for  his  removal.  But  the 
verdict,  whicli  was  for  the  plaintiff,  was  set  aside.  * 

12.  Rigid  of  access  to  railway  depot. 

§  194.  Although  the  platform  of  a  railroad  company,  at 
its  station  or  stopping  place,  is  erected  for  the  accommoda- 
tion of  passengers  arriving  and  departing  in  the  train,  yet 
it  is  in  no  sense  a  public  highway.  Being  unenclosed,  per- 
sons are  allowed  the  privilege  of  walking  over  it  for  other 
purposes,  but  they  have  no  legal  right  to  do  so ;  and  the 
servants  of  the  company  after  requesting  them  to  leave,  can 
remove  them  by  whatever  force  may  be  necessary.  Any  per- 
son who  desires  to  take  the  cars,  has  the  right  to  go  upon  the 
premises  of  the  company  at  any  station  where  the  trains 
stop;  and  the  company  cannot  lawfully  prevent  or  hinder  his 
coming  there,  or  order  him  to  depart  therefrom,  before  the 
departure  of  the  train.f     This  right  does  not  depend  upon 


*  In  Crocker  v.  New  Lond.  &c.  R.  R.  Co.  supra,  the  court,  in  granting  a  new- 
trial,  laid  down  the  following  propositions:  1.  As  common  carriers  merely,  the 
defendants  were  under  no  legal  obligation  to  furnish  tickets,  or  to  carry  pas- 
sengers for  less  than  fifty-five  cents  in  money,  that  being  agreed  to  be  a  reason- 
able price.  2.  The  plaintiff's  claim  to  a  passage,  as  if  he  had  a  ticket,  rested 
entirely  on  the  assumed  engagement  of  the  defendants  to  furnish  tickets,  and 
the  plaintiff's  endeavor  to  procure  one,  defeated  by  the  defendants  themselves. 
8.  Tlie  published  regulation  of  the  defendants  was  not  a  contract,  creating  a 
legal  debt  or  duty,  but  a  mere  proposal,  which  might  be  suspended  or  with- 
drawn at  pleasure.  4.  It  was  suspended,  if  not  withdrawn,  by  the  closing  of  the 
ortice,  and  the  retirement  of  the  agent.  5.  Tlie  proposition  being  suspended  or 
withdrawn,  the  parties  were  in  the  same  condition  as  before  it  was  made.  The 
defendants  continuing  common  carriers,  were  l)ound  lo  carry  for  their  reasonable 
com|)ensation,  fifly-tive  cents,  but  not  otherwise. 

t  A  railroad  or  steamboat  company,  by  the  dejiarture  and  arrival  of  their  con- 
veyances, give  an  invitation  to  all  who  desire  to  approach  their  boats  or  cars  to 
pass  over  tlieir  wharf  or  platform;  and  one  accustomed  so  to  pass,  cannot  be 
deemed  a  trespasser  in  repeating  his  act  after  a  new  station  or  landing  has  been 
adopted,  and  the  cars  or  boats  have  ceased  to  use  the  okl  one.  To  exclude  the 
passer's  right  so  as  to  make  him  in  fault,  notice  must  have  been  given  of  its 
Vol.  T— 12 


1 78  ASSAULT  AND  BATTERY.  §  194 

the  purchase  of  a  ticket,  unless  the  rules  of  the  company  re- 
quire that  all  persons  shall  purchase  tickets  before  they  enter 
the  cars ;  the  procuring  of  a  ticket  only  affording  evidence  of 
an  intent  to  go  upon  the  train.  But  it  would  seem  to  be 
but  just,  inasmuch  as  the  right  to  remain  after  request  to 
leave  de2:)ends  upon  the  intent  of  the  party  to  take  the  train, 
to  require  of  him  that  on  such  request  being  made,  if  he  in- 
tends to  rely  on  such  right,  he  should  make  known  his  in- 
tent to  the  persons  making  the  request,  or  show  that  such 
persons  had  knowledge  thereof  from  some  other  source.  The 
right  must  not  only  be  exercised  in  a  proper  manner,  and 
with  a  due  regard  to  the  just  requirements  of  the  compan37^. 
but  it  must  be  exercised  within  a  reasonable  time ;  that  is, 
the  person  may  come  upon  the  premises  of  the  company 
within  a  reasonable  time  next  prior  to  the  regular  time  of 
departure  of  the  train  on  which  he  intends  to  go,  and  remain 
until  such  train  leaves.  AVhat  is  a  reasonable  time  must  de- 
pend much  upon  the  circumstances  of  each  particular  case. 
The  situation  of  the  station  with  reference  to  public  houses, 
the  distance  that  the  intended  traveler  resides  from  the  sta- 
tion, and  many  other  considerations  should  be  taken  into 
account  in  determining;  the  lens-th  of  time  that  it  would  he 
reasonable  for  the  person  to  come  to  the  station  and  remain 
before  the  leaving  of  the  train  on  which  he  intended  to  take 
passage.^  '"^     Harris  v.  Stevens,-  was  an  action  for  assault  and 

changed  character,  and  that  the  rights  of  passers  are  terminated  (E.  R.  Co.  v. 
Manning,  15  Wall.  649). 

'Barker  v.  The  Midland  R.  R.  Co.  18  C.  B.  46;  Com.  v.  Power,  7  Mete. 
596 ;  Hall  v.  Power,  13  lb.  482,;  Gillis  v.  Penn.  R.  R.  Co.  59  Penn.  St.  R.  139. 

=  31  Vt.  79. 

*  The  great  object  for  which  railroad  corporations  are  created  and  invested 
with  their  extraordinary  powers  is,  that  they  shall  act  as  carriers  of  persons  and 
property  upon  their  roads  when  completed;  and  by  accepting  their  charters,  con- 
structing and  putting  in  operation  their  roads,  they  not  only  take  upon  them- 
selves all  the  duties  and  liabilities  incident  to  the  character  of  common  carriers, 
but  they  assume  other  important  duties  and  liabilities.  They  not  only  have  the 
right  to  act  as  common  carriers,  l)ut  they  are  bound  to  act  as  such.  The  public 
have  the  right  to  insist  that  they  shall  continue  so  to  act.  They  cannot  throw 
off  this  responsibility,  and  absolutely  refuse  to  discharge  their  duties,  except  by 
an  abandonment  and  surrender  of  their  charters.  They  cannot  of  their  own  mo- 
tion, while  acting  under  their  charters,  and  operating  their  road,  divest  them- 
selves of  their  character  of  common  carriers,  and  refuse  to  receive  and  carry  pas- 


§  190.  RIGHT   OF   ACCESS   TO   RAILWAY  DEPOT.  179 

battery  to  which  the  defendant  pleaded  that  he  was  station 
agent  of  a  certain  railroad  company,  and  that  the  alleged 
trespass  was  committed  by  him  in  removing  the  plaintiff 
from  the  premises  of  the  company,  where  he  remained  after 
being  told  to  leave.  The  plaintiff  replied,  that  at  the  time 
of  the  assault  he  was  at  the  depot  of  the  company  waiting- 
for  a  train  for  w^hich  he  had  purchased  a  ticket.  It  w^as  in- 
sisted on  the  part  of  the  defendant,  as  cause  of  demurrer,  that 
the  facts  set  forth  in  the  replication  were  not  sufficient  to 
justify  the  plaintiff'  in  remaining  on  the  premises  of  the 
company,  after  he  was  requested  by  the  defendant  to  leave,, 
inasmuch  that  it  was  not  alleged  that  the  plaintiff'  was  there 
intending  to  take  the  then  next  train  of  ctirs  upon  which  he 
was  entitled  by  his  ticket  to  go,  that  the  said  next  train  was 
then  about  to  leave,  and  that  the  plaintiff  was  then  upon  the 
premises  of  the  com2:)any  awaiting  and  expecting  the  arrival 
and  departure  of  such  train.  It  was  held  not  necessary  for 
the  plaintiff  to  allege  that  he  entered  upon  the  premises  in- 
tending to  purchase  a  ticket,  or  to  take  the  train ;  for  if  he 
entered  without  that  intent,  and  after  his  entry  formed  the 
intent,  his  right  to  remain  thereafter  would  be  the  same  as 
though  it  had  existed  at  tlie  time  of  entry;  but  that  the 
plaintiff'  should  have  averred,  that  at  the  time  when,  <fec.,  he^ 
was  at  the  station  awaiting  the  departure,  of  a  train  that  was. 
expected  to  leave  within  a  short  j^eriod  of  time  thereafter. 

§  195.  The  license  to  enter  and  remain  upon  the  premises, 
of  a  railroad  company,  is  revocable  as  to  all  except  those 
who  have  legitimate  business  there.  The  right  ma}^  be  for- 
feited by  the  improper  conduct  of  the  person,  or  the  viola- 
tion of  the  rules  and  regulations  of  the  company.  In  that 
case,  the  company,  by  their  servants,  may  require  him  to 
depart,  and  on  his  refusal  so  to  do,  they  may  remove  him.^ 

§  196.  Where  the  president  of  a  corj^oratiou  is  the  mere 

sengers,  or  refuse  to  allow  them  to  come  upon  their  premises  at  the  proper  place, 
aud  time,  for  the  purpose  of  taking  passage. 
'  31  Vt.  79. 


180  ASSAULT    AND.  BATTEEY.  §  197. 

conduit  for  communication  between  the  corporation  and  its 
agent,  transmitting  to  the  latter  tlie  orders  of  the  corpora- 
tion, as  to  removing  persons  from  the  premises  of  the  corpora- 
tion who  are  intruders  there,  lie  will  not  be  liable  for  the 
abuse  of  his  authority  by  tlie  agent.  But  it  is  otherwise, 
where  it  is  a  personal  order  emanating  from  the  president.^ 

13.  Seduction  of  daughter  tvith  violence. 

§  197.  Where  seduction  is  accomi)anied  with  actual 
violence  upon  the  person  of  the  daughter,  or  an  illegal  entry 
upon  the  plaintiff's  close,  or  into  his  house,  tresjiass  will  lie; 
and  damages  for  the  seduction  and  loss  of  service,  may  be 
laid  as  matter  of  ao-OTavation.^  "  Althougjh  in  such  actions 
the  injury  is  to  the  relative  rights  of  the  father  or  husband, 
yet  as  he  is  not  supposed  to  assent  to  the  act,  it  is  regarded 
as  done  forcibly  as  against  him ;  and  for  damages  sustained 
by  him,  trespass  vi  et  annis  has  been  considered  a  proper 
form  of  action.  Lord  Holt  is  quoted  as  saying  in  a  case 
reported  by  Lord  Raymond,'^  that  a  man  could  not  maintain  an 
action  against  another  for  assaulting  his  daughter  and  getting 
her  with  child,  unless  there  had  been  an  unlawful  entry  into 
the  plaintiff's  premises,  in  which  case,  the  assault  upon  the 
daughter,  would  be  an  aggravation.  But  the  accuracy  of 
Lord  Raymond's  recollection  of  what  was  said  by  Holt,  was 
doubted  in  Woodward  v.  Walton,'*  and  the  law  held  to  be 
otherwise,  upon  the  authority  of  an  earlier  case  than  the  one 
in  Raymond.  That  was  Guy  v.  Livesey,^  which  was  an 
action  for  assault  and  battery,  in  which  the  plaintiff  recovered 
for  a  battery  inflicted  by  the  defendant  upon  him,  and  also 
f(^r  the  loss  of  the  service  and  companionship  of  his  wife, 
"who  went  with  the  defendant  and  lived  with  him  in  a  sus- 
picious manner ; — and  Cholmley's  case  cited  in  the  foregoing, 
where  a  man  brought  an  action  for  the  battery  of  his  wife,  and 

4» 

'  Hewett  V.  Swift,  3  Allen,  420. 

-  Moran  v.  Dawes,  4  Cowen,  412;  Ilubbell  v.  Wheeler,  2  Aiken,  359. 

'  Russell  V.  Corne,  2  Ld.  Raym.  1032. 

*  1  Bos.  &  Pul.  R.  S.  476.  "  Cro.  Jac.  501 ;  2  Roll.  R.  51. 


§  108.  SEDUCTION   OF   DAUGHTER   WITH   VIOLENCE.  181 

recovered  for  the  injury  to  him  thereby.  A  man  might  there- 
fore bring  trespass  vi  et  armis^  for  the  seduction  of  his  wife, 
daughter  or  servant,  or  for  au  assault  and  battery  upon  them  ; 
and  hence  the  averment  of  assaulted,  debauched,  and  carnally 
knew,  in  all  the  forms  ;  for  whether  the  carnal  knowledge  was 
wdth,  or  against  the  will  of  the  wife  or  daughter,  the  action 
was  equally  maintainable."  ^  In  such  actions  however,  the 
injury  to  the  person  of  the  child,  and  to  the  property  of  the 
plaintiff,  are  generally  little  more  than  a  mere  fiction.  The 
direct  injury  may  be  waived  in  all  cases,  and  the  declaration 
framed  to  meet  the  consequential  injury,  disregarding 
entirely  every  consideration,  except  the  loss  of  service,  and 
the  more  important  one  of  seduction  and  disgrace.'^' 

§  198.  At  common  law,  for  seduction,  the  w^oman  had  no 
cause  of  action,  the  civil  action,  where  carnal  knowledge  of 


'  Daly,  J.,  in  Koeuig  v.  Nott,  2  Hilt.  323;  s.  c.  8  Abb.  384. 

*  lu  New  York,  id  Moran  v.  Dawes,  supra,  which  was  decided  previous  to 
the  enactment  of  the  statute  referred  to  in  the  text,  §  198,  the  court  said:  "A 
very  usual  case  may  be  supposed  in  which,  if  we  are  to  be  governed  by  the 
technical  rules  relating  to  an  action  of  trespass,  the  father  woukl  be  remediless, 
for  the  most  aggravated  form  of  the  injury,  unless  he  has  an  election.  The 
seducer  is  received  at  the  dwelling  of  the  father,  on  the  footing  of  a  suitor;  he 
thus  having  a  license  to  enter  the  house,  of  whicii  he  avails  himself  to  accomplish 
the  seduction  with  the  consent  of  the  daughter.  It  could  hardly  be  said  that 
trespass  and  assault  would  lie  for  such  an  act.  The  father  is  then  put  to  his 
remedy  by  trespass  qtinre  domum  fregit,  laying  the  seduction,  &c.,  by  way  of 
aggravation.  The  defendant  does  not  become  a  trespasser  ah  initio  ;  for  license 
was  given  by  the  party.  The  defendant  may  therefore  justify  the  entry.  It  is 
a  rule  that  a  trespass  itself  being  justified,  this  also  reaches  the  matter  laid  in 
aggravation;  and  thus  the  defendant  would  be  acquitted  of  the  entire  charge 
against  him.  It  cannot  be,  that  the  law  ever  intended  to  trammel  this  remedy 
by  imi)osiug  upon  the  party  such  an  absurd  result.  It  marks  the  limit  of  the 
prosecution  by  confining  it  to  one  holding  the  relation  of  master;  from  which 
it  looks  directly  to  the  consequential  injury  as  the  vital  spark  of  the  action." 

In  a  still  earlier  case  in  New  York  (Nickleson  v.  Stryker,  10  Johns.  115), 
which  was  an  action  of  trespass  for  assaulting  and  getting  with  child  the 
daughter  of  the  plaintiff,  it  was  proved  that  the  daughter  was  twenty-nine  years 
of  age,  and  not  in  the  actual  service  of  her  father,  when  she  had  the  connection 
with  the  defendant,  and  it  was  held  that  the  plaintiff  could  not  sustain  the 
action;  the  rule  being  settled,  that  if  the  daughter  be  of  age,  she  must  be  in 
her  father's  service  so  as  to  constitute,  in  law  and  in  fact,  the  relation  of  master 
and  servant,  in  order  to  entitle  her  father  to  a  suit  for  seducing  her.  If  she  be 
under  age,  she  is  presumed  to  be  under  his  control  and  protection,  whether  she 
reside  with  him  or  not  (and  see  Martin  v.  Payne,  9  Johns.  387;  Shufelt  v. 
Rowley,  4  Cowen,  58). 

In  Delaware,  it  lias  been  held  that  an  Rction  per  quod  sermtium  amisit,  maj 
be  maintained  by  a  father  for  a  forcible  injury  to  his  son  (Hammer  v.  Pierce,  5 
Harring.  171). 


182  ASSAULT  AND  BATTERY.  §  199. 

her  person  was  ol>taiiied  against  her  will  being  merged  in 
the  felony.  In  New  York,  under  tlie  statute/  a  woman  upon 
whom  a  rape  has  been  committed,  may  maintain  an  action 
for  the  personal  injury ;  and  in  stating  her  cause  of  action, 
it  is  sufficient  if  her  complaint  conforms  to  what  is  essential 
in  the  way  of  averment  in  actions  for  injuries  to  the  person. 
Accordingly,  in  an  action  for  assault  and  battery,  an  aver- 
ment in  the  complaint,  that  the  defendant  with  force  and 
arms,  ill  treated  the  plaintiff  and  made  an  indecent  assault 
upon  her,  and  then  and  there  debauched,  and  carnally  knew 
her,  was  held,  on  demurrer,  sufficient.' " 

14.   Chastisement  of  pupil  hy  teacher. 

§  199.  A  tutor  or  schoolmaster  may  lawfully  exercise  so 
much  of  restraint  and  correction  as  may  be  necessary  to  an- 
swer the  purposes  for  wliicli  he  is  employed.^  f  And  when 
a  scholar  who  is  guilty  of  insubordination  and  misconduct 


'  3  N.  Y.  Rev.  Sts.  5th  ed.,  p.  589,  §  2. 

"^  Koeuig  V.  Scott,  supra.  '  1  Blk.  Com.  453. 

*  In  this  case,  the  demurrer  was  sustained  by  the  judge  at  special  term, 
upon  the  assumption  that  tlie  words  "  made  an  indecent  assault,  aud  then  and 
there  debauched  and  carnally  knew,"  imported  nothing  more  than  the  seduction 
of  the  plaintiff,  for  which  she  could  maintain  no  action.  Daly,  J.,  in  delivering 
the  opinion  of  the  New  York  Common  Pleas,  reversing  the  judgment  of  the 
Special  Term,  said: — ''The  doubt  in  respect  to  this  complaint  has  arisen,  I  ap- 
prehend from  the  ])leader's  emj)loying  the  form  of  averment,  '  assaulted,  de- 
bauched, and  carnally  knew,'  which  was  usual  in  actions  of  trespass  ti  et  armis, 
brought  by  a  father  for  the  seduction  of  his  daughter,  or  by  a  husband  for  crim- 
inal conversation  with  his  wife.  Thus,  in  Woodward  v.  Walton,  1  Bos.  &  Pul. 
N.  R.  476,  which  was  an  action  of  trespass,  the  averment  was,  that  the  defend- 
ant with  force  aud  arms,  assaulted,  debauched  and  carnally  knew  the  plaintiff's 
daughter;  and  in  Rigaut  v.  Gallisard,  7,  Mod.  78,  the  court  say,  'If  a  man  find 
another  man  in  bed  with  his  wife,  he  may  have  an  assault  and  battery  against 
him.'  Thus,  in  the  forms  in  Chitty,  for  an  action  of  trespass  vi  et  armis,  for 
criminal  conversation,  or  seducing  a  daughter,  the  averment  is  always,  assaulted, 
debauched,  and  carnally  knew  "  (2  Chitty's' PI.  856,  6th  Am.  ed.;  and  to  the 
same  effect,  are  numerous  authorities.  Macfadzen  v.  Olivant,  6  East,  387;  Ben- 
nett V.  Olcott,  2  Term  R.  166;  Bac.  Abr.  Marriage,  E,  3). 

Where  a  declaration  for  seducing  the  plaintiff's  daughter,  was  framed  in 
trespass,  but  omitted  the  words  •'  with  force  and  arms."  it  was  held  that  the  ob- 
jection was  cured  by  verdict  (Parker  v.  Bailey,  4  D.  &  R.  215). 

t  A  music  master  of  a  cathedral  is  not  justified  in  even  moderately  beating  a 
chorister  for  singing  at  a  club,  although  such  singing  might  ])e  injurious  to  his 
performing  in  the  cathedral.  Evidence  of  the  practice  of  one  cathedral  is  not 
admissible  in  an  action  against  the  music  master  of  another,  for  I)eatiug  a  chor- 
ister for  singing  at  a  club  (Newman  v.  Bennett,  2  Chit.  195). 


§  200.  CHASTISEMENT   OF   PUPIL   BY  TEACHER.  183 

refuses  to  leave  the  school  upon  being  directed  Ly  the 
teacher  to  do  so,  a  third  person  may,  upon  the  request  of  the 
•teacher,  use  such  force  as  is  necessary  to  remove  the  scholar.^ 
The  power  of  the  teacher  must  be  temperately  exercised; 
and  no  schoolmaster  should  feel  himself  at  liberty  to  admin- 
ister chastisement  co-extensively  with  the  parent."^  A  great, 
and  to  some  extent  irresponsible,  power  of  control  and  cor- 
rection is  invested  in  the  parent  by  nature  and  necessity.  It 
springs  from  the  natural  relation  of  parent  and  child.  It  is 
felt  rather  as  a  duty  than  a  power.  From  the  intimacy  and 
nature  of  the  relation,  and  the  necessary  character  of  family 
government,  the  law  suffers  no  intrusion  upon  the  authority 
of  the  parent  and  the  privacy  of  domestic  life,  unless  in 
extreme  cases  of  cruelty  and  injustice.  This  parental  power 
is  little  liable  to  abuse ;  for  it  is  continually  restrained  by 
natural  affection,  the  tenderness  which  the  parent  feels  for  his 
offspring,  an  affection  ever  on  the  alert,  and  acting  rather  by 
instinct  than  reason.  The  schoolmaster  has  no  such  natural 
restraint.  Hence,  he  may  not  safely  be  trusted  with  all  a 
parent's  authority,  for  he  does  not  act  from  the  instinct  of 
parental  affection.  He  should  be  guided  and  restrained  by 
judgment  and  wise  discretion,  and  hence  is  responsible  for 
their  reasonable  exercise. 

§  200.  To  justify  a  schoolmaster  in  a  resort  to  corporal 
punishment,  the  cause  must  be  sufficient,  the  instrument  suit- 
able to  the  purpose,  and  the  punishment  be  administered  in 
moderation.^  He  must  exercise  reasonable  judgment  and 
discretion  in  determining  when  to  punish  and  to  what  ex- 
tent. In  determining  what  is  a  reasonable  punishment, 
various  considerations  must  be  regarded, — the  nature  of  the 
offense,  the  apparent  motive  and  disposition  of  the  offender, 
the  influence  of  his  example  and  conduct  upon  others,  and 
the  sex,  age,  size  and  strength  of  the  pupil  to  be  punished. 
Among  reasonable  persons  much  difference  prevails  as  to  the 

■  State  V.  Williams,  27  Vt.  755.  ''  1  Blk.  Com.  453,  n.  13. 

'  Cooper  V.  McJunkin,  4  Ind.  290. 


184  ASSAULT  AND  BATTERY.  §  200. 

circumstances  wliicli  will  justify  the  infliction  of  punish- 
ment, and  the  extent  to  whicli  it  may  properly  be  adminis- 
tered. On  account  of  this  difference  of  opinion,  and  tlie 
difficulty  which  exists  in  determining  what  is  a  reason- 
able punishment,  and  the  advantage  which  the  master  has 
by  being  on  the  spot  to  know  all  the  circumstances,  the 
manner,  look,  tone,  gestures  and  language  of  the  offender 
(which  are  not  always  easily  described),  and  thus  to  form  a 
correct  opinion  as  to  the  necessity  and  extent  of  the  punish- 
ment, allowance  should  be  made  the  teacher  by  way  of  pro- 
tecting him  in  the  exercise  of  his  discretion.  If,  however^ 
the  punishment  be  clearly  excessive,  the  teacher  will  be 
liable,  although  in  his  own  judgment  he  deemed  the  punish- 
ment necessary  and  proper.  In  Lander  v.  Seaver,^  it  was 
claimed  in  behalf  of  the  defendant  at  the  trial  in  the  court 
below,  that  the  schoolmaster  was  a  public  officer,  that  in  his 
government  of  the  school  he  was  invested  with  j)ublic 
authority,  with  discretionary  j)owers,  and  acted  in  a  judicial 
capacity,  and  so  was  not  liable  for  errors  of  judgment.*  The 
judge  charged  the  jury  that  "  although  the  punishment  in- 
flicted on  the  plaintiff  was  excessive  in  severity  and  dispro- 
portioned  to  the  offense,  still,  if  the  master,  in  administering 
it,  acted  with  pro]3er  motives,  in  good  faith,  and,  in  his 
judgment,  for  the  best  interests  of  the  school,  he  would  not 
be  liable;  that  a  schoolmaster  acts  in  a  judicial  capacity,  and 
that  the  infliction  of  excessive  punishment,  when  prompted 
by  good  intentions,  and  not  by  malice  or  wicked  motives  or 
an  evil  mind,  was  merely  an  honest  error  of  opinion,  and  did 
not  make  him  liable'  to  the  pupil  for  damages."  The 
Supreme  Court,  however,  held  that  this  was  not  the  law. 
And  a  similar  instruction  asked  for  in  Massachusetts  was 
refused,  the  court  telling  the  jury  that  if  they  found  that  the 


'  33  Vt.  114;  s.  p.  Hathaway  v.  Rice,  19  Vt.  102. 

*  His  authority  was  likened  to  that  of  public  officers,  such  as  listers,  iu  the 
case  of  Fuller  v.  Gould,  20  Vt.  613;  the  posi  master-general,  in  Kendall  v.  Stokes,. 
8  Howard,  87 ;  the  mayor  of  New  York,  in  Wilson  v.  The  Mayor  &c.  1  Deuio,. 
595 ;  or  a  commander  in  the  navy,  as  in  Wilkes  v.  Dinsman,  7  Howard,  89. 


§  202.  CHASTISEMENT   OF   PUPIL   BY   TEACHER.  185 

punislimeut  was  excessive  and  improper,  the  master  might  be 
found  guilty;  and  the  charge  was  held  correct  upon  the 
hearing  of  the  defendant's  exceptions  in  the  Supreme 
Court.^  * 

§  201.  The  supervision  and  control  of  the  teacher  over 
the  scholar  continues  from  the  time  the  pupil  leaves  home  to 
go  to  school  until  he  reaches  home.  Most  parents  would 
expect  and  desire  that  teachers  should  take  care  that  their 
children  in  going  to  and  returning  ft^om  school  should  not 
loiter,  or  seek  evil  company,  or  frequent  places  of  evil  resort. 
But  when  the  child  has  returned  home,  the  parental  author- 
ity is  resumed,  and  the  control  of  the  teacher  ceases,  at  least 
as  to  all  ordinary  acts  of  misbehavior. 

§  202.  The  right  of  the  teacher  to  chastise  his  pupil  for 
what  has  occurred  at  the  home  of  the  latter,  presents  a  qaes- 
tion  of  extreme  delicacy.  It  certainly  ought  only  to  be  ex- 
ercised, if  at  all,  in  rare  instances,  and  under  exceptional  cir- 
cumstances. The  acts  done  out  of  the  teacher's  supervision 
for  which  he  may  punish,  must  be  direct  and  immediate  in 
their  bearing  upon  the  welfare  of  the  school,  or  the  author- 
ity of  the  master  and  the  respect  due  to  him.  Cases  may 
readily  be  supposed  which  lie  very  near  the  line,  and  it  will 
often  be  difficult  to  distinguish  between  the  acts  which  have 
such  an  immediate  tendency  and  those  which  have  not.  In 
Lander  v.  Seaver,-^  the  question  presented  was  as  to  the  right 
of  the  master  to  punish  his  pupil  for  acts  of  misbehavior 
committed  after  the  school  was  dismissed  and  the  pupil  had 
returned  home.  It  apj^eared  that  the  offense  for  which  the 
boy  was  whipped  was  committed  at  his  home,  an  hour  and  a 
half  after  the  school  was  out ;  the  boy  using  towards  the 
master,  and  in  his  hearing  and  in  the'presence  of  other  pupils. 


'  Com.  V.  Randall,  4  Gray,  3G.  =  32  Vt.  114. 

*  In  Com.  V.  Randall,  siipra,  the  court  said  that  if  the  schoolmaster,  in  inflict- 
in<T  punisiiment  upon  his  pnpil,  went  beyond  the  limit  of  moderate  castigation, 
and  either  in  its  mode  or  degree  committed  any  unreasonable  and  disproportionate 
violence,  he  was  clearly  liable  for  such  excess,  it  then  becoming  an  assault  and 
battery,  because  i)urposely  inflicted  without  justification  or  excuse. 


186  ASSAULT  AND  BATTERY.  §  203. 

coiiteiBptuoiis  language.  It  was  held  that  where,  as  in  this 
case,  the  oftense  has  a  direct  and  immediate  tendency  to  in- 
jiu'e  the  school,  and  bring  the  master's  authority  into  con- 
tempt, when  done  in  the  presence  of  other  scholars  and  of 
the  master,  and  with  a  design  to  insult  him,  the  master  had 
the  right  to  punish  the  scholar  upon  his  reappearance  at 
school. 

15.  Chastisement  of  servant  hy  master. 

§  203.  Except  in  the  case  of  sailors,  the  master  cannot 
lawfully  chastise  his  hired  servant.  If  he  beat  his  servant, 
though  moderately  and  by  way  of  correction,  it  is  good 
ground  for  the  servant's  de23arture,  and  the  servant  may  sup- 
port an  action  against  the  master  for  the  battery.^  *  Mathews 
V.  Terry  -  was  an  action  against  a  master  for  an  assault  and 
battery  alleged  to  have  been  committed  by  him  upon  a 
minor  thirteen  or  fourteen  years  of  age,  in  his  employ  in  the 
business  of  mauufacturino;  clocks.  The  defendant  offered  to 
prove  that  the  jDlaintiif  conducted  himself  insolently  towards 
him,  and  refused  to  obey  his  la'vvful  commands,  Avhereupon 
he  moderately  chastised  the  plaintiff  for  such  misbehavior. 
It  was  urged  by  the  defendant  that  this  j)ower,  if  not  given 
by  the  common  law,  was  conferred  by  the  statute  relating  to 
masters  and  servants,  which  required  the  proprietors  of 
manufacturing  establishments  to  cause  the  children  employed 
in  such  establishments,  whether  bound  by  indenture,  by 
parol  agreement,  or  in  any  other  manner,  to  be  taught  to 
read  and  write,  to  be  instructed  in  arithmetic,  and  regularly  to 
attend  public  worship,  and  that  due  attention  be  paid  to  the 
preservation  of  their  public  morals.  It  was  held,  however, 
that  the  proposed  evidence  was  not  admissible,  no  such  con- 
•struction  of  the  statute  l^eino;  warranted.  The  court  re- 
marked  that  if  the  children  employed  were  apprentices,  they 

'  1  Chit.  Pr.  7S,  75 ;  Newman  v.  Bennett,  2  Chit.  R.  195. 

"  10  Conn.  455. 

*  Although  the  hirer  of  a  slave  has  the  same  riglit  to  punish  and  correct  the 
slave  which  the  owner  himself  has,  yet  if  tlie  punishment  is  cruel,  the  hu'er  be- 
comes a  trespasser  ab  initio  (Nelson  v.  Bonduraut,  26  Ala.  341). 


§§  204,  205.   ABUSE  BY  KEEPER  OF  ALMSHOUSE.  187 

were  liable  to  be  piinisbed  by  their  masters,  to  whom  they 
were  bound,  for  their  misconduct  and  disobedienct; ;  but  that 
if  they  were  simply  hired  to  labor,  as  was  the  case  with  the 
plaintiff,  and  refused  to  submit  to  the  reasonable  and  lawful 
requirements  of  their  employers,  they  were  liable  to  be  dis- 
missed like  any  other  hired  servants,  but  not  corporally 
2>unished. 

16.   Corporal  ]}uni8liment  oy  master  of  vessel. 

§  204.  Although  a  captain  has  a  right  to  inflict  corporal 
punishment  upon  a  seaman  under  his  command,  yet  it  is  not 
an  arbitrary  and  uncontrolled  right.  He  is  amenable  to  the 
law  for  the  due  exercise  of  it.  He  ought  to  be  able  to  show, 
not  only  that  there  was  a  sufficient  cause  for  chastisement,  but 
that  the  chastisement  itself  was  reasonable  and  moderate.^  * 
Mr.  Abbott  ^  lays  down  the  following  rule  on  this  subject : 
*'  By  the  common  law,  the  master  has  authority  over  all  the 
mariners  on  board'  the  ship,  and  it  is  their  duty  to  obey  his 
commands  in  all  lawful  matters  relative  to  the  navigation  of 
the  ship  and  the  preservation  of  good  order  ;  and  in  case  of 
disobedience  or  disorderly  conduct,  he  may  lawfully  correct 
them  in  a  reasonable  manner ;  his  authority  in  this  respect 
being  analogous  to  that  of  a  parent  over  a  child,  or  a  master 
over  his  apprentice  or  scholar.  Such  an  authority  is  abso- 
lutely necessary  to  the  safety  of  the  ship  and  of  the  lives  of 
the  persons  on  board ;  but  it  behoves  the  master  to  be  very 
careful  in  the  exercise  of  it,  and  not  to  make  his  parental 
power  a  pretext  for  cruelty  and  oppression." 

17.  Abuse  by  heeper  of  almshouse. 

§  205.  The  keeper  of  an  almshouse  has  a  right,  in  order 
to  maintain  the  good  conduct  of  his  establishment,  and  for 


'  Brown  v.  Howard,  14  Johns.  119.  ^  Tr.  on  Shij^ping,  125. 

*  The  father  of  a  minor  child  may  maintain  a  libel  for  the  assault  and  battery 
of  his  child  at  sea.  But  it  will  be  necessary  to  prove  either  actual  damage  or 
damage  by  intendment  of  law;  and  the  action  may  be  maintained  after  the 
child's  death,  occasioned  by  the  battery  (Plummer  v.  Webb,  Ware,  75). 


188  ASSAULT  AND  BATTERY.  §  205. 

the  purpose  of  restraining  its  inmates  from  committing  mis- 
chief, to  use  a  reasonable  amount  of  preventive  force  wben 
otlier  means  are  ineffectual.  But  be  cannot  lawfully  con- 
fine and  chain  a  pauper,  although  directed  to  do  so  by  the 
selectmen  of  the  town,  excepting  in  case  of  such  impend- 
ing danger  from  the  pauper  as  to  render  it  necessary. 
State  V.  Hull  and  Webb  ^  was  an  information  for  an 
assault  and  battery  upon  one  Foote,  a  pauper,  Hull  being 
the  keeper  of  the  paupers  of  the  town,  and  Webb  his 
hired  servant.  The  question  was  whether  the  evidence 
tended  to  prove  the  existence  of  such  an  emergency  at  the 
time  of  the  wrongs  complained  of  as  justified  the  kind  and 
degree  of  violence  resorted  to  by  the  defendants.  It  ap- 
peared that  Foote  was  sitting  in  a  lower  room  of  the  house 
reading.  He  was  in  a  place  where  he  had  a  right  to  be, 
and  had  given  no  provocation.  While  in  this  situation, 
the  defendants  pushed  him  up  stairs  with  force,  and  fastened 
him  in  his  chamber.  Upon  being  told  by  him  that  he  could 
not  be  confined  in  this  manner,  they  threw  him  down,  fast- 
ened an  iron  chain  around  his  legs,  and  locked  it  with  a  pad- 
lock to  a  staple  driven  into  the  floor.  They  then  went  away, 
locking  the  door  of  the  room,  and  leaving  him  alone, — a  man 
seventy-nine  years  old  chained  down  as  though  he  had  been 
a  wild  beast.  Evidence  was  offered  that  about  sx  year  pre- 
vious to  the  occurrence  complained  of  the  pauper  conveyed 
rum  into  the  house,  got  drunk,  made  others  drunk,  and  hid 
the  rum,  and  that  upon  an  attempt  being  made  to  destroy  it, 
he  attacked  the  keeper,  and  that  it  was  then  necessary  to 
chain  him ;  that  he  was  of  a  turbulent  character  and  temper, 
not  to  be  restrained  by  ordinary  means ;  that  on  several  oc- 
casions he  had  been  turbulent  and  unruly,  and  had  been 
guilty  of  wanton  and  destructive  acts  in  the  kitchen,  and  had 
obstructed  the  work.  As  these  occurrences  had  taken  place 
long  before  the  assault  charged,  had  no  connection  with  it, 
and  did  not  tend  to  show  any  such  impending  danger  from 

'  34  Conu.  132. 


§  20C.      PERSONAL   VIOLENCE  BY   HUSBAND   UPON   WIFE.  189 

the  pauper  at  tlie  time  of  the  assault  as  made  it  necessary  to 
confiue  aud  chain  him,  it  was  held  that  the  proposed  evi- 
dence w^as  not  admissible.  And  a  verdict  havino;  been  found 
in  the  court  below  against  both  of  the  defendants,  the  Su- 
preme Court  refused  to  disturb  it. 

18.    Personal  violence  hy  husband  upon  wife. 

§  206.  A  man  cannot  law^fully  beat  his  wife.^  "  Beat- 
ing or  striking  a  wife  violently  with  the  open  hand  is  not  one 
of  the  rights  conferred  on  a  husband  by  the  marriage,  even 
if  the  wife  be  drunk  or  insolent."^  An  action  for  assault  and 
battery  will  not,  however,  lie  by  a  feme  covert  against  her 
husband.^  * 

'  Perry  v.  Perry,  2  Paige,  501-503;  People  v.  Winters,  2  Park.  Cr.  Cas.  10. 

^  Com.  V.  Thouipsou,  108  Mass.  461. 

^  Longendyke  v.  Longendyke,  44  Barb.  366. 

*  In  Longendyke  v.  Longendyke,  siipra,  it  was  conceded  that  by  the  rules  of 
the  common  law  husband  aud  wife  could  not  sue  each  other  in  a  civil  action. 
The  only  question,  therefore,  was  whether  that  right  had  been  conferred  by 
stattfte.  Section  7,  cb.  90,  of  the  Laws  of  New  York  of  1860,  declares  that 
married  women  may  sue  aud  be  sued  in  all  matters  relating  to  their  property 
which  may  be  their  sole  and  separate  property  or  come  to  them  from  any  person 
except  their  husbands;  and  may  bring  actions  to  recover  damages  for  injuries  to 
their  person  or  character  against  any  person  or  body  corporate,  which  damages, 
when  so  recovered,  shall  be  their  sole  and  separate  property.  The  court  said: 
"  The  right  to  sue  her  husband  in  au  action  of  assault  and  battery  may,  perliaps, 
be  covered  under  the  literal  language  of  this  section.  But  I  think  such  was  not 
the  meaning  and  intent  of  the  Legislature,  and  such  should  not  be  the  construc- 
tion given  to  the  act,  for  the  following,  among  other  reasons:  1.  It  is  contrary 
not  only  to  the  rule  of  the  common  law,  but  to  the  spirit  and  intent  of  the 
married  women's  acts,  the  object  of  which  was  to  add  to  her  property  rights  as 
Sifeme  sole,  and  to  distinguish  her  property  from  her  liusband's,  and  not  to  con- 
fer rights  of  action  upon  her  against  him.  3.  It  is  contrary  to  the  policy  of  the 
law,  and  destructive  of  that  conjugal  unicu  and  tranquility  which  it  has  always 
been  the  object  of  the  law  to  guard  and  protect.  3.  The  efl'ect  of  giving  so 
broad  a  construction  to  the  act  of  1860  might  be  to  involve  the  husband  and 
wife  in  perpetual  controversy  and  litigation,  to  sow  the  seeds  of  perpetual  dis- 
cord and  broil,  to  produce  the  most  discordant  and  conflicting  interest  of  prop- 
erty between  them,  and  to  offer  a  bounty  or  temptation  to  the  wife  to  seek 
encroachment  upon  her  husband's  property,  which  would  not  only  be  at  war 
with  domestic  peace,  but  deprive  her  probably  of  those  testamentary  dispositions 
by  the  husband  in  her  favor  which  he  would  otherwise  be  likely  to  muke.  Under 
the  acts  of  1848  and  1849,  which  are  quite  comprehensive,  the  courts  held  that 
they  did  not  remove  the  wife's  common  law  disal)ility  to  contract,  otherwise 
than  as  respected  her  separate  property.  They  therefore  held  her  promissory 
notes  and  executory  contracts  invalid,  evincing  a  disposition  not  to  enlarge 
the  acts  in  question  beyond  their  most  plain  and  obvious  scope,  nor  to  remove 
the  disabilities  of  the  common  law  to  any  greater  extent  than  was  required  by 
by  the  plain  words  of  the  statute.  The  act  of  1800  was,  doubtless,  intended  to 
enlarge  this  right  to  make  bargains  aud  contracts,  and  sections  2  aud  8  of  that 


190  ASSAULT  AND  BATTERY.  §  207. 

10.  Injury  from  reckless  driving. 

§  207.  Trespass  is  the  proper  remedy  for  injury  caused 
by  reckless  drivina;.^  ^  In  an  action  for  drivins;  a  wag-on 
witli  great  force  and  violence  against  tlie  plaintiff's  barouche^ 
in  -svliich  he  was  then  riding  along  the  public  highway, 
whereby  the  barouche  was  broken,  and  the  plaintiff  thrown 
to  the  ground  and  injured,  the  following  instruction  of  the 
judge  before  whom  the  cause  was  tried  was  held  correct: 
That  the  plaintiff'  would  Ije  entitled  to  recover  if  the  defend- 

act  would  appear  to  give  unqualified  power  to  make  bargains  and  contracts  itt 
regard  to  her  property.  But  if  we  follow  the  spirit  of  previous  decisions,  it  is 
very  doubtful  whether  they  would  be  held  so  far  to  destroy  the  unity  and 
identity  of  husband  and  wife  as  to  enable  her  to  bargain  and  sell  her  property  to 
her  husband.  The  act  of  1863  (Laws  of  1862,  ch.  172)  does  not  materially  differ 
from  the  act  of  1860,  or  require  a  different  construction.  It  repeals  some  sections 
of  the  act  of  1860.  It  confers  the  power  to  sue  and  be  sued  in  somewhat  broader 
terms  than  the  act  of  1860,  but  not  in  a  manner  to  lead  to  the  implication  that 
the  husband  was  intended  to  be  permitted  to  be  sued  by  the  wife  for  injuries  to 
her  person  and  character,  as  in  an  action  of  assault  and  battery  or  slander  "^ 
(refering  to  Erwin  v.  Smaller,  2  Sand.  SiO:  Pillow  v.  Bushnell,  5  Barb.  158; 
Hasbrouck  v.  Vandervoort.  4  Sand.  596 ;  Citv  Bank  v.  Bangs,  3  Paige,  36  ; 
People  V.  Carpenter,  9  Barb.  580 ;  Marsh  v.  Potter,  30  lb.  506 ;  Babbott  v. 
Thomas,  31  lb.  277;  Coon  v.  Brook,  21  Barb.  546;  Dickerman  v.  Abraham's,  II). 
551;  Bass  v.  Bean,  16  How.  Pr.  R.  93;  Arnold  v.  Eingold,  lb.  158;  Switzer  v. 
Valentine,  4  Duer,  96;  Yale  v.  Dederer,  18  X.  Y.  Pv.  265). 

MValdron  v.  Hopper,  Coxe,  339;  Rappelyea  v.  Hulse,  7  Halst.  257. 

*  An  action  for  beating  the  plaintiff's  horse  attached  to  a  wagon,  in  which  the 
plaintiff  was  at  the  time  sitting,  is  not  an  action  for  an  assault  and  battery,  but. 
for  •'  injuring  property  "  (Bull  v.  Colton,  22  Barb.  94,  Balcom,  J.).  "The  plaintiff 
had  the  right  to  waive  all  damages  for  the  assault  upon  his  person,  and  bring 
his  action  solely  for  the  injury  to  his  horse.  His  person  was  not  touched,  and 
the  damages  to  his  horse  were  easily  separated  from  any  for  the  supposed  assault 
upon  his  person.  He  had  his  choice  between  two  remedies,  and  has  elected  which 
action  he  would  bring,  and  such  election  did  not  prejudice  the  defendant.  He 
has  lost  no  right  by  reason  thereof.  The  recovery  in  this  case,  is  a  bar  to  any 
other  action  the  plaintiff*  may  institute  for  damages  arising  out  of  the  same  trans- 
action." The  conductor  of  a  street  railroad  car,  is  not  the  driver,  within  the 
statute  of  New  York  (X.  Y.  Rev.  Sts.  5th  ed.  Vol.  2.  p.  966,  §§  6,  7),  whicli 
provides  that  the  owners  of  carriages  running  upon  the  highway  for  the  convey- 
ance of  passengers,  shall  be  liable  for  personal  injuries  caused  by  the  driver  while 
driving  (Isaacs  v.  Third  Ave.  R.  R.  Co.  47  X.  Y.  122). 

The  statute  above  referred  to,  is  as  follows: — '"  The  owners  of  every  carriage 
running  or  traveling  upon  any  turnpike  road,  or  public  highway  for  the  convey- 
ance of  passengers,  shall  be  liable  jointly  and  severally  to  the  party  injured  in 
all  cases,  for  all  injuries  and  damages  done  by  any  person  in  the  employment  of 
such  owner  or  owners  as  a  driver,  while  driving  such  carriage,  to  any  person,  or 
tp  the  property  of  any  person :  and  that,  whether  the  act  occasioning  such  injury 
or  damage  be  wilful  or  negligent  or  otherwise,  in  the  same  manner  as  such 
driver  would  be  liable.  The  term  '  carriage,'  as  used  in  this  title,  shall  be  con- 
strued to  include  stage  coaches,  wagons,  carts,  sleighs,  sleds,  and  every  other 
carriage  or  vehicle  used  for  the  transportation  of  persons  and  of  goods,  or  either 
of  them." 


§  208.  INJURY  FROM  RECKLESS  DRIVING.  191 

ant,  either  intentionally  or  through  gross  negligence,  drove 
his  wao-on  against  the  plaintiff's  barouche,  and  thereby  over- 
set it  and  caused  the  injury;  that  the  same  would  be  the 
case  if  the  defendant  was  guilty  of  a  w^ant  of  ordinary  and 
reasonable  care  and  prudence,  unless  there  was  also  fault  or 
negligence  on  the  plaintiff's  part,  which  concurred  in  pro- 
ducing the  injury ;  and  that  ^vhat  occurred  previous  to  the 
collision,  however  improper  or  indiscreet  the  conduct  of  the 
plaintiff  might  have  been,  w^ould  furnish  no  justification  or 
excuse  for  the  act  of  the  defendant  in  subsecpiently  driving 
his  carriage  against  that  of  the  plaintiff,  either  through  de- 
sign or  negligence.^ 

§  208.  A  driver  who  endeavors  to  keep  the  road,  and 
prevent  others  with  lighter  and  more  active  vehicles  from 
passing,  or  strives  to  run  them  oft',  or  to  repass  them  by  un- 
usual and  reckless  driving,  Avill  be  liable  for  the  damage 
thereby  occasioned ;  ^  and  if  his  conduct  has  the  sanction  of 
his  employer,  the  latter  will  be  liable.  The  defendant  and 
others  hired  a  job  carriage  and  four  post  horses,  with,  two 
postillions,  to  go  to  Epsom  races.  On  the  road,  the  drivers, 
in  ''  cutting  in,"  to  the  line  formed  for  the  purpose  of  passing 
.through  a  toll-gate,  overturned  a  gig  in  which  the  j^laintift' 
was  seated,  and  severely  injured  him.  After  the  accident, 
the  defendant,  who  was  on  the  driver's  box,  offered  money  to 
the  injured  party,  and  gave  him  his  card  ;  and  upon  the 
owner  of  the  gig  afterward  calling  upon  him,  the  defendant 
observed  that  "  cutting  in  "  was  all  fair  upon  such  occasions, 
and  that  he  "  intended  if  the  gig  had  gone  Cjuietly  out,  to  have 
pulled  up  to  let  it  in  again."  It  was  held  that  the  jury  were 
warranted  in  inferring  that  the  postillions  had  acted  as  they 
did  with  the  sanction  of  the  defendant,  and  consequently 
that  he  was  liable  in  trespass  for  the  injury  done.^  ^' 

'  Cliurcliill  V.  Rosebeck,  15  Conn.  359. 
=  Strohl  V.  Levan,  39  Penn.  St.  R.  177. 

'  McLaughlin  v.  Pryor,  4  Scott,  N.  R.  655 ;  1  Car.  &  M.  354 ;  6  Jur.  374. 
*  An  action  of  trespass  may  be  maintained  against  a  father  for  an  injury 
caused  by  his  team  in  charge  of  his  son,  with  whom  he  was  riding  at  the  time  of 


192  ASSAULT    AND    BATTERY.  §§  209,  210. 

20.  Resisting  arrest. 

§  209.  It  is  the  duty  of  an  officer  to  show  his  warrant  if 
asked  to  do  so.  In  New  York  it  has  been  held  that  if  this 
is  not  done  the  party  arrested  may  resist,  and  that  the  officer 
will  be  liable  for  assault  and  battery  and  false  imprison- 
ment.^ Bellows  V.  Shannon  ^  was  an  action  for  assault  and 
battery  on  an  officer  who  was  attempting  to  arrest  the  de- 
fendant under  a  warrant.  It  appeared  that  the  defendant 
did  not  know  at  the  time  of  the  occurrence  that  a  warrant 
had  been  issued,  and  it  was  held  that  he  was  not  liable.  The 
court  remarked  that  "  to  allow  an  officer  to  recover  damages 
in  such  a  case  would  be  to  permit  him  to  take  advantage  of 
his  own  misconduct.  A  liberal  protection  should  be  awarded 
to  public  officers  when  they  act  uprightly ;  but  they  are  en- 
titled to  no  favor  when  they  designedly  act  in  such  a  way  as 
to  lead  third  persons  into  difficulty.  When  they  fall  into 
error  in  an  honest  effi)rt  to  discharge  their  duty,  it  is  enough 
that  they  are  allowed  to  set  uj)  their  official  character  as  a 
shield.  They  should  not  be  permitted. to  use  it  as  a  weapon 
of  assault  against  one  who  has  been  misled  by  their  improper 
conduct,  and  who  has  done  nothing  more  than  resort  to  the 
law  of  self  defense." 

§  210.  In  an  action  for  assault  and  battery  and  false  im- 
prisonment against  an  officer,  it  is  competent  for  the  plaintiff 
to  show  that  he  consented  to  accompany  the  officer,  and 
that,  notwithstanding  such  consent,  he  was  roughly  and 
brutally  treated.  This  consent  would  form  an  important 
element  in  the  case,  and,  if  sincere,  would  have  required  and 
justified  a  smaller  degree  of  force  than  under  other  circum- 
stances.    So,  on  the  other  hand,  it  is  competent  to  show  the 

the  occurrence,  "  Here  the  son  was  driving,  and  the  father,  the  defendant,  was 
riding.  The  latter  made  no  objection  or  endeavor  to  control  his  son,  and  if  he 
did  not,  it  was  a  presumption  which  a  jury  might  well  make,  and  which  I  think 
they  were  bound  to  make,  that  he  assented  to  what  was  done  in  the  management 
of  the  instrument  (the  team)  which  did  the  injury,  and  therefore,  per  consequence, 
was  answerable,  provided  the  result  was  not  an  unavoidable  accident,  which  the 
jury  have  found  was  not  the  case  "  (Strohl  v.  Levan,  supra;  ante^  §  40). 
'  Frost  V.  Thomas,  24  Wend.  418;  see  fost,  §  333.  ^  2  Hill,  S6. 


I 


§§  211,  212.       AIDING  OR  ENCOURAGING  ASSAULT.  193 

resistance  of  the  plaintiff,  in  words  as  well  as  in  acts ;  and 
when  the  plaintiff,  besides  resisting,  said  that  he  would  mur- 
der any  man  that  attempted  to  arrest  him,  it  was  held  that  a 
much  greater  degree  of  force  was  justified  than  if  there  had 
been  no  such  threat,^  * 

21.  Aiding  or  encouraging  assault. 

§  211.  The  rule  to  which  we  have  already  adverted,^  that 
all  persons  aiding  and  abetting  or  counseling  and  procuring 
a  trespass,  or  afterward  assenting  to  it,  when  done  for  their 
benefit,  are  principals,  applies  to  femes  covert  and  minors, 
who  are  consequently  liable  when  they  procure  another  to 
commit  an  assault  and  battery.  The  cases  to  the  contrary 
relate  to  civil  acts  done  by  the  command  of  2:)ersons  not 
having  capacity  to  make  contracts ;  and  because  such  com- 
mands are  in  the  nature  of  a  contract,  they  are  void.  But 
trespasses  are  analagous  to  crimes,  which  femes  covert  and 
minors  may  be  answerable  for,  although  not  personally  pres- 
ent Avhen  committed.^ 

§  212.  If  j)ersons  who  are  present  at  a  quarrel  encour- 
'  age  a  battery,  they  assume  the  consequences  of  the  acts  done, 
to  the  fullest  extent.  Often  they  are  more  culpable  than  the 
active  participants.  It  is  not  necessary  that  the  encourage- 
ment should  consist  of  appeals  to  the  ruffian  engaged  in  com- 
mitting the  battery.  It  is  enough  if  they  encourage  and 
sanction  what  is  being  done,  and  manifest  this  by  demonstra- 
tions of  resistance  to  any  who  might  desire  to  interfere  to 
prevent  it ;  or  by  words,  gestures  or  acts  indicate  an  approval 
of  what  is  going  on.  The  law  will  not  weigh  very  nicely 
the  acts  of  individuals  to  ascertain  w^hether  what  was  said 
or  done  by  them  has  enhanced  the  injury  more  or  less  than 


'  Fultou  V.  Staats,  41  N.  Y.  498.  "  Ante,  §  23. 

"  Sikes  V.  Johnson,  16  Mass.  389. 

*  In  Fulton  v.  Staats,  mpra,  Lott,  J.,  with  whom  Grover  and  Woodruff,  J.J., 
concurred,  dissefating,  maintained  that  no  dechiration,  sucli  as  it  was  alleged  the 
plaintiff  had  made,  would  justify  or  palliate  any  of  the  acts  complained  of, 
especially  if  not  made  in  the  presence  of  the  defendant. 
Vol.  1^13 


194  ASSAULT    AlilD    BATTERY.  §  212.. 

the  acts  of  others.  All  so  engaged  are  answerable  for  all 
the  injury.-'  The  following  instruction  Avas  accordingly  held 
correct :  "  If,  in  a  tumultuous  crowd,  the  defendant  saw  a 
person,  by  him  known  to  be  an  officer  in  the  discharge  of  his 
duty,  assaulted,  and  used  Avords,  acts  or  gestures  which 
might  tend  to  incite  or  encourage  the  person  then  assaulting 
the  officer  to  assault  him,  he  might  be  convicted  of  an  as- 
saiult,  notwithstanding  he  did  not  in  person  touch  or  injure 
the  officer."  ^  Where  a  carpenter,  connected  with  a  train  of 
artillery,  but  who  was  not  subject  to  martial  law,  brought 
an  action  for  assault  and  battery  against  the  governor  of 
Gibraltar,  and  proved  that  he  had  been  tried  by  court  mar- 
tial and  sentenced  to  be  whipped,  and  that  the  governor 
confirmed  the  sentence,  which  Avas  then  executed,  it  was  held 
that  the  plaintiff  was  entitled  to  recover.^  An  officer,  accom- 
panied by  an  execution  creditor,  tried  to  levy  on  a  mare 
which  the  debtor  had  sold  to  one  Wood.  The  debtor  and 
Wood  resisted  the  attempt  of  the  officer  to  take  the  mare, 
and  in  the  scuffle  Wood  jumped  on  to  the  mare  and  rode  her 
away.  The  officer  then  directed  the  creditor  to  seize  the 
debtor,  and  hold  him  while  he  went  after  Wood  and  the 
mare,  which  the  creditor  did.  In  an  action  by  the  debtor 
against  the  officer  and  creditor  for  assault  and  battery,  it  was 
held  that  as  the  execution  did  not  run  ao-ainst  the  debtor's 
body,  and  as  he  did  not  interfere  or  threaten  to  interfere 
with  the  officer's  going  after  the  mare,  both  of  the  defendants 
were  liable.'*  ^ 

'  Frantz  v.  Leuhart,  56  Penn.  St.  365;  Little  v.  Tingle,  26  Ind.  168;  State  v. 
Rawles,  65  K  C.  334;  ante,  §  23;  2^081,  §  290. 

"  Com.  V.  Hurley,  09  Mass.  433. 

'  Cowp.  175.  *  Francis  v.  Leach,  41  Vt.  675. 

*  The  fact  that  a  person  was  present  when  an  assault  and  battery  was  com- 
mitted, without  in  any  way  participating  in  it,  will  not  make  him  liable  to  dam- 
ages therefor;  although  he  was  at  a  public  meeting  a  short  time  previous  as  a 
selectman  of  the  town,  at  which  meeting  a  committee  was  appointed  to  look 
after  those  suspected  of  being  disloyal,  in  pursuance  whereof  the  jilaintiff  was 
visited  by  the  committee,  followed  by  a  large  crowd  of  persons,  by  some  of  whom 
the  assault  and  battery  was  committed  in  the  presence  of  the  selectman,  it  not 
appearing  that  at  the  meeting  auv  violence  was  proposed  or  contemplated  (Miller 
y.  Shaw,  4  Allen,  500). 

A  person  to  be  liable  as  a  joint  trespasser  for  an  assault  and  battery  committed 


§§  213,  214.       .  PLACE    OF    TRIAL.  195 

§  213.  Persons  whose  duty  it  is  to  interfere  to  prevent 
threatened  A^olence,  may  make  themselves  liable  for  not 
affording  the  required  protection.  The  responsibility  of  the 
father  for  the  wrongful  act  of  the  child  conirhitted  in  his 
presence,  has  already  been  spoken  of.^  In  Avery  v.  Bulkly,^ 
which  was  an  action  for  assault  and  battery,  the  defendants 
were  the  captain  and  lieutenant  of  a  comj^any  of  militia  who 
were  marching  in  order  through  the  country  to  a  general 
training  under  the  command  of  the  defendants.  The  trespass 
was  committed  by  some  of  the  company  under  suck  circum- 
stances that  the  defendants  must  have  known  it ;  and  they 
took  no  measures  to  suppress  it,  or  to  detect  and  punish  it 
after  it  had  happened.  A  verdict  having  been  found  for  the 
plaintiff,  the  Supreme  Court  refused  to  disturb  it."' 

22.  Place  of  trial. 

§  214.  A  state  or  nation  may  give  its  citizens  redress  for 
personal  injury  committed  w^ithout  as  ^vell  as  within  its 
territorial  limits,  when  it  obtains  the  means  of  exercising 
jurisdiction  over  the  wrong-doer.  This  is  recognized  by  the 
common  law.  Many  if  not  most  of  the  actions  which  are 
brought  are  transitory  and  not  local ;  and  if  the  cause  upon 
which  any  one  of  them  is  founded  arose  in  a  foreign  land,  it 
would  be  just  as  tenable  as  if  it  arose  here.  The  fact,  that 
the  redress  is  given  by  statute  instead  of  by  the  common 
law  makes  no  difference.  K  penal  law  is  strictly  local. 
But  whether  a  remedial  statute  is  extraterritorial^  in  reference 
to  the  class  of  injuries  for  which  it  proposes  to  afford  recb'ess 
or  compensation,  depends,  like  other  statutes,  upon  the 
intention  of  the  Legislature,  to  be  gathered  from  the  lan- 
guage employed,  the  law  as  it  previously  existed  in  relation 


in  his  absence,  must  be  sLown  to  have  done  something  which  led  directly  to  the 
commission  of  the  offense  l>y  liis  6otrespasser  (Bird  v.  Lynn,  10  B.  Mon.  422). 

'  Ante,  §  40.  =1  Root,  275. 

*  A  person  who  sees  an  affray  may  forcibly  interfere  as  a  peace-maker,  unless 
he  uses  more  violence  tlian  is  reasonably  neceesary  for  the  purpose  (Timothy  v. 
Simpson,  (>  C.  &  P.  500). 


190  ASSAULT  AXD  BATTERY.         §§  215,  216. 

to  tlie  same  subject,  tlie  mischief  to  be  prevented,  and  the 
remedy  to  be  applied ;  and  every  such  statute  is  to  be  liberally 


construed.^ 


§  215.  In  England,  it  has  been  held  that  an  action  will 
lie  there,  for  a  wrong  committed  by  one  English,  subject 
against  another  in  a  foreign  land,  if  reparation  in  damages 
is  sought  by  process  against  the  person  of  the  wrong-doer,  or 
against  his  property  within  the  jurisdiction  of  the  court.^ 
But  it  seems  that  in  such  case,  it  must  be  proved  that  the 
act  causing  the  damage,  was  wrongful  1)y  tlie  law  of  the 
country  in  which  it  was  done.'^  TSTiere  a  Captain  Gambler 
tore  down  sutlers'  houses  in  Nova  Scotia,  which  furnished 
liquor  to  his  sailors,  and  afterward  inadvertently  carried  one 
of  the  sutlers  to  England  in  his  ship,  and  the  sutler  as  soon 
as  he  landed  prosecuted  the  captain,  it  was  held  that  the 
action  would  lie.^  In  New  York,  it  is  now^  settled  that  the 
courts  will  entertain  jurisdiction  of  actions  for  personal 
injuries  committed  abroad,  when  both  oi'  either  of  the  parties 
are  citizens  of  the  United  States.^  ^ 

S  216.  AYe  have  found  no  case  where  foreigners  have 


'  Beach  t.  The  Bay  State  Co.  27  Barb.  248 ;  s.  c.  30  lb.  433 ;  but  see  Vande- 
venter  v.  N.  Y.  &  New  Haven  R.  R.  Co.  27  Barb.  244. 

'  Scott  V.  Lord  Seymour,  1  H.  «fc  C.  219;  31  L.  J.  Exch.  457. 

^  Mostyn  V.  Fabrigas,  Cowp.  161;  1  Smith's  L.  C.  607;  Dobree  v.  Napier,  2 
Bing.  N.  C.  781 ;  Duke  of  Brunswick  v.  King  of  Hanover,  6  Beav.  1. 

'    Cowp.  180. 

'  Glen  V.  Hodges,  9  Johns.  67 ;  Johnson  v.  Dalton,  1  Cowen,  543 ;  Smith  v. 
Bull,  17  Wend.  323;  Lister  v.  Wright,  2  Hill,  320;  ]Mussina  v.  Belden,  6  Abb. 
165;  Latourette  v.  Clarke,  45  Barb.  327;  Dewitt  v.  Buchanan,  54  lb.  31. 

*  The  New  York  Common  Pleas,  in  Molony  v.  Dows,  8  Abb.  Pr.  R.  316, 
held  otherwise;  but  that  case  is  not  to  be  regarded  as  authority.  That  decision 
was  probably  affected  by  the  necessities  of  the  case,  overlooking  the  second 
section  of  the  fourth  article  of  the  Constitution  of  the  United  States,  which 
provides  that  "the  citizens  of  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  States." 

In  New  York,  except  so  far  as  the  place  of  trial  of  actions  for  injuries  to  the 
person  has  been  regulated  by  statute,  such  actions  have  always  been  regarded 
as  transitory  and  triable  in  any  court  where  tke  plaiutifl'  may  elect  to  bring  his 
action  (Mclvorv.  McCabe,  16  Abb.  319;  but  see  Chapman  v.  Wilber,  6  Hill,  475). 

Where  the  assault  and  battery  is  charged  to  have  been  committed  at  M.  in  the 
county  of  H.  and  within  the  jurisdiction  of  the  court,  it  need  not  be  proved  to 
have  been  committed  in  the  town  of  M.  (Sturgenegger  v.  Taylor,  3  Brevard,  7 ; 
Hurley  v.  Marsh,  1  Scam.  329). 


§  217.  PLACE   OF  TRIAL.  107 

been  allowed  to  resort  to  the  English  courts  to  redress  their 
personal  wrongs,  committed  in  another  country.  In  Mostyn 
V.  Fabrigas/  Lord  Mansfield  put,  by  way  of  illustration,  the 
instance  of  two  Frenchmen  fighting  in  France,  and  expressed 
a  doubt  of  the  jurisdiction  of  the  courts  in  England  in  such 
a  case.  In  New  York,  however,  it  has  been  held  that  the 
courts  of  the  State  will  entertain  jurisdiction  of  an  action 
brought  by  one  foreigner  against  another,  for  a  personal  in- 
jury committed  abroad.  But,  as  a  matter  of  policy,  the 
court  will  only  exercise  such  jurisdiction  in  exceptional  cases. 
Where,  therefore,  the  case  was  an  ordinary  one  of  assault  and 
battery,  committed  in  Canada,  both  parties  still  residing 
there,  and  the  defendant  being  casually  in  the  State  of  New 
York  when  arrested,  the  court  said  they  saw  nothing  in  the 
case  to  show  why  jurisdiction  should  be  entertained.  It  is 
most  clearly  against  the  interests  of  those  living  on  the 
border,  for  our  courts  to  encourage  or  entertain  jurisdiction 
of  such  actions.  To  do  so,  would  establish  a  practice  which 
might  often  be  attended  with  serious  disadvantage.  The 
true  policy  is  to  refuse  jurisdiction,  in  all  such  cases,  unless 
for  special  reasons  shown.^  ■^* 

S  217.  Courts  of  common  law  have  coo-nizance  of  marine 
trespasses,  when  it  is  not  a  question  of  prize ;  it  not  being 
the  place,  but  the  nature  of  the  issue,  that  determines  the 
jurisdiction  of  the  court.  Whenever  the  rights  of  the  parties 
are  to  be  governed  by  the  municipal  law,  and  not  by  the  law 
of  nations,  it  would  seem  to  follow  as  a  matter  of  course, 
that  common  law  courts  have  jurisdiction  of  the  case.     In 

'  Cowp.  161. 

^  Dewitt  V.  Buchanan,  54  Barb.  31. 

*  "I  have  been  unable  to  discover,"  said  James,  J.,  in  Dewitt  v.  Buchanan, 
supra,  "  any  principle  on  which  the  jurisdiction  of  the  court,  in  such  a  case  as 
this,  can  be  denied.  But,  as  a  question  of  policy,  there  are  many  reasons  why 
jurisdiction  should  not  be  entertained.  Unless  for  special  reasons,  non-resident 
foreigners  should  not  be  permitted  the  use  of  our  courts  to  redress  wrongs,  or  en- 
force contracts  committed  or  made  within  their  own  territory.  Our  courts  are 
organized  and  maintained  at  our  own  expense,  for  the  use,  benefit,  and.  protec- 
tion of  our  citizens.  Foreigners  should  not  be  invited,  to  bring  their  matters 
here  for  litigation.  But  if  a  foreigner  flee  to  this  country,  he  may  be  pursued 
and  prosecuted  here." 


198  ASSAULT  AXD  BATTERY.  §  217. 

the  act  of  Congress  establisbiug  the  judicial  courts  of  the 
Uinted  States,  there  is  a  sa^dug  to  suitors  in  all  cases,  of  the 
right  of  a  common  law  remedy,  when  the  common  law  is 
competent  to  give  it.^  Actions  for  injuries  to  the  person, 
have  often  been  maintained  in  the  common  law  courts  of 
England,  against  naval  as  well  as  military  commanders,  by 
their  subordinates,  for  acts  done  both  at  home  and  abroad,  un- 
der pretence  and  color  of  naval  and  military  discipline.^  There 
are  also  many  cases  in  the  books,  where  actions  have  been  sus- 
tained against  members  of  courts  martial,  naval  and  military, 
who  have  exceeded  their  authority  in  the  infliction  of  punish- 
ment." ^'  In  an  action  for  assault  and  battery  and  false  im- 
prisonment, on  the  high  seas,  committed  by  the  commander 
of  a  vessel  in  the  United  States  navy,  it  was  held  that  the 
courts  of  New  York  have  jurisdiction  of  personal  wrongs 
committed  by  a  superior  officer  of  the  navy  upon  a  subor- 
dinate, while  at  sea,  and  engaged  in  the  public  service.  It 
was  suggested  on  argument,  by  the  defendant's  counsel,  that 


'  Hallett  V.  Novion,  14  Johns.  273. 

■  Wall  V.  McNamara,  and  Swinton  v.  Molloy,  cited,  1  Term  R.  536,  537 ;  Mostyn 
V.  Fabrigas,  Cowp.  161;  Warden  v.  Bailey,  4  Taunt.  67;  s.  c.  4  Maule  v.  Selw. 
400 ;  Hannaford  v.  Hunn,  2  Car.  &  P.  148. 

^  4  Taunt.  70,  75,  and  cases  cited, 

*  In  the  case  of  Lieut.  Trye  v.  Sir  Chaloner  Ogle,  1  McArthur  on  Courts 
Martial,  268,  4th  ed.,  the  defendant  was  president  of  a  court  martial  which  had 
sentenced  the  plaintiff  to  fifteen  years'  imprisonment ;  when  the  only  charge 
against  him  was,  that  he  required  a  warrant,  in  writing,  to  justify  him  in  taking 
another  officer  into  his  custody,  under  an  arrest,  which  was  considered  no  of- 
fense. The  verdict  was  1,000/.  The  case  became  somewhat  memorable  for  a 
collision  between  the  civil  and  military  courts,  and  for  the  firmness  and  triumph 
of  the  former.  In  the  course  of  the  trial  of  the  cause,  the  judge  having  re- 
marked that  the  plaintitf  was  at  liberty  to  bring  ids  action  against  any  of 
the  memljers  of  the  court  martial,  he  proceeded  against  Rear  Admiral  ]\Iayne 
and  Captain  Rentone,  who  were  arrested,  by  a  writ,  upon  the  breaking  up  of 
the  court  martial,  where  the  former  presided,  and  the  latter  sat  as  a  member. 
This  was  much  resented  by  the  members  of  the  court  martial,  who  passed  reso- 
lutions on  the  subject,  reflecting,  in  intemperate  language,  on  the  chief  justice 
of  the  court,  Sir  John  Willes.  The  resolutions  were  laid,  by  the  lords  of  the 
admiralty,  before  the  king.  But  the  chief  ju.stice.  without  waiting  for  the  re- 
sult, caused  every  member  of  the  court  martial  to  be  taken  into  custody  for  con- 
tempt, when  a  stop  was  put  to  the  proceedings  by  a  public  written  submission, 
signed  by  all  of  the  members  of  the  court  martial,  and  ti'ansmitted  to  the  chief 
justice,  which,  after  being  read  in  court,  was  registered  in  the  Remembrancer's 
Office — "A  memorial,"  as  the  chief  justice  observed,  "to  the  present  and 
future  ages,  that  whoever  set  themselves  up  in  opposition  to  the  laws,  or  think 
themselves  above  the  law,  will,  in  the  end,  find  themselves  mistaken." 


§  218.  PLACE    OF    TRIAL.  199 

inasmuch  as  the  defendant  was  in  the  service  of  the  United 
States  when  the  acts  complained  of  were  done,  the  courts  of 
the  State,  as  a  matter  of  comity  and  policy,  should  decline 
to  take  jurisdiction,  within  the  principle  of  Gardner  v. 
Thomas  ;  ^  hut  the  court  thought  otherwise.^  A  similar  ob- 
jection was  taken  and  overruled  in  Percival  v.  Hickey,'^ 
which  was  the  case  of  a  marine  trespass  committed  by  the 
commander  of  a  British  slooj)  of  war,  Spencer,  Ch.  J.,  re- 
marking that  the  court  was  not  at  liberty  to  assume  or  de- 
cline jurisdiction  upon  speculative  grounds,  or  for  reasons  of 
public  j^olicy. 

§  218.  The  State  courts  may  take  cognizance  of  torts  com- 
mitted on  the  high  seas,  on  board  of  a  foreign  vessel,  where 
both  parties  are  foreigners.  But  if  jurisdiction  could  be 
claimed  as  matter  of  right,  it  would  introduce  a  principle 
which  might  oftentimes  be  attended  with  manifest  disad- 
vantage and  serious  injury  to  our  own  citizens  abroad,  as  well 
as  to  foreigners  here.  It  must  therefore,  on  principles  of 
policy,  often  rest  in  the  sound  discretion  of  the  court  to 
afford  or  withhold  jurisdiction,  in  such  cases,  according  to  cir- 
cumstances.^ '^ 

'  14  Johns.  134,  /wsf,  §  218,  iiote.  =  Wilson  v.  Mackenzie,  7  Hill,  95. 

^  18  Johns.  257.  *  Gardner  v.  Thomas,  14  Johns.  134. 

•  *  To  hold  that  jurisdiction  could  De  claimed,  in  all  cases,  as  matter  of  right, 
would  introduce  a  principle  which  might  oftentimes  be  attended  with  manifest 
disadvantage  and  serious  injury  to  our  own  citizens  abroad,  as  well  as  to  foreign- 
ers here.  Mariners  might  so  annoy  the  master  of  a  vessel  as  to  break  up  the 
voyage,  and  thvis  produce  great  distress  and  ruin  to  tlie  owners.  In  Gardner  v. 
Thomas,  supra,  Thomas  brought  an  action  against  Gardner,  in  the  justices'  court 
of  the  city  of  New  York,  for  assault  and  battery,  to  which  the  defendant  pleaded 
that  the  parties  were  British  subjects,  and  that  the  alleged  offense  was  committed 
on  board  a  British  vessel  on  the  high  seas.  A  general  demurrer  to  this  plea 
having  been  overruled,  the  court  gave  judgment  for  the  plaintiif.  On  error  to 
the  Supreme  Court,  the  question  presented  was  whether  the  courts  of  the  State 
would  take  cognizance  of  a  tort  committed  on  the  high  seas,  on  board  of  a 
foreign  vessel,  both  of  the  i)arties  being  subjects  or  citizens  of  the  country  to 
which  the  vessel  belonged.  The  court,  in  deciding  that  they  might  do  so,  but 
that  in  the  then  case,  it  was  not  expedient  to  exercise  such  a  jurisdiction,  said: — 
"It  must  be  conceded  that  the  lavv  of  nations  gives  complete  and  entire  juris- 
diction to  the  -courts  of  the  country  to  which  the  vessel  belongs,  but  not  exclu- 
sively. It  is  exclusive  only  as  it  respects  the  public  injury,  but  concurrent  with 
the  tribunals  of  other  nations  as  to  the  private  remedy.  There  may  be  cases, 
however,  where  the  refusal  to  take  cognizance  of  causes  for  such  torts, 
may  be  justilied  by   the  manifest  public  inconvenience  and  injury,    which  it 


200  ASSAULT    AND    BATTERY.  §§  219-21. 

23.  Holding  to  hail. 

§  219.  In  New  York,  in  actions  for  assault  and  battery, 
it  lias  been  held  that  some  special  reason  must  be  shown 
for  holdino'  the  defendant  to  bail ;  as  that  he  is  a  transient 
person  residing  out  of  the  jurisdiction  of  the  court.^  But 
after  the  defendant  has  given  bail,  and  put  in  an  answer, 
it  is  too  late  for  him  to  vacate  the  order  directins;  his  ar- 
rest.' 

21.  Parties  to  action. 

§  220,  The  person  upon  whom  the  assault  and  battery 
was  committed  is,  in  general,  the  proper  party  to  bring  the 
action.  But  if  the  injury  has  resulted  in  his  death,  the  action 
if  maintainable,  must  be  brought  by  his  personal  representa- 
tive. AVhen  the  person  assaulted  is  a  servant,  and  the  mas- 
ter has  lost  the  benefit  of  his  labor  in  consequence  of  the 
assault,  the  action  may  be  brought  both  by  sei'vant  and  mas- 
ter. The  servant  is  entitled  to  an  action  for  every  trifling 
battery.  In  the  case  of  the  master,  however,  he  must  have 
sustained  damage  by  losing  the  services  of  his  servant.  ^ 

§  221.  At  common  law,  the  husband  has  no  interest  in, 
or  title  to,  damages  occasioned  by  an  injury  done  to  the  per- 


would  create,  to  the  commnnity  of  both  nations ;  and  the  present  is  such  a  case. 
The  facts  in  this  case  sufficiently  show  the  impropriety  of  extending  jurisdiction, 
because  it  is  a  suit  1)i-ought  by  one  of  the  mariners  against  the  master,  both 
foreigners,  for  a  personal  injury,  sustained  on  board  of  a  foreign  vessel  on  the 
high  seas,  and  lying  in  port  when  the  action  was  commenced,  and,  for  aught 
that  appears  in  the  case,  intending  to  return  to  their  own  countiy  without  de- 
lay, other  than  what  the  nature  of  the  voyage  required.  Under  such  circum- 
stances, it  is  manifest  that  correct  policy  ought  to  have  induced  the  court  below 
to  have  refused  jurisdiction,  so  as  to  prevent  the  serious  consequences  which  must 
result  from  the  introduction  of  a  system,  with  regard  to  foreign  mariners  and 
vessels,  destructive  to  commerce,  since  it  must  materially  affect  the  necessary  in- 
tercourse between  nations  by  which  it  alone  can  be  maintained.  The  plaintitf, 
therefore,  ought  to  have  been  left  to  seek  redress  in  the  courts  of  his  own  country 
on  his  return.  The  judgment,  for  these  reasons,  may  be  deemed  to  be  improvi- 
dently  rendered  in  the  court  below,  and  is,  therefore,  reversed." 

'  Zimmerman  v.  Chrisman,  7  Hill,  153. 

"  McKenzie  v.  Hackstaff,  2  E.  D.  Smith,  75;  referring  to  Chapman  v.  Snow, 
1  B.  &  P.  133;  Jones  v.  Price.  1  East,  81;  Crygier  v.  Long,  1  Johns.  Cas.  393; 
Lewis  V.  Truesdale,  3  Sandf.  70G. 

=  Robert  Marv's  Case,  9  Co.  205. 


§221.  PARTIES  TO  ACTION.  201 

son  of  the  wife  ;  though  money  collected  on  a  judgment  for 
such  an  injury  becomes  the  property  of  the  husband.  If  the 
wife  die  pendente  lite,  the  action  abates.  If  the  husband  die 
before  action  brought,  or  pendente  lite,  the  action  survives  to 
the  wife.  ^  The  injury  to  the  person  of  the  wife,  is  therefore 
the  meritorious  cause  of  action.  In  AVisconsin  an  action 
under  the  statute^  for  injury  inflicted  on  a  married  woman, 
resulting  in  her  death,  must  be  brought  by  the  executor  or 
administrator.  ^  In  New  York,  the  statute  ^  has  changed  the 
common  law  rights  of  the  husband  and  wife  in  respect  to 
torts  committed  upon  the  person  of  the  wife,  and  has  made 
her  the  sole  plaintiff  in  actions  brought  for  them,  and  given 
her  the  exclusive  right  to  the  damages  therefor,  and  has  taken 
from  the  husband  all  right  to,  or  control  over,  the  same,  in 
actions  brought  for  such  injuries.  Damages  for  assault  and 
battery  on  the  ^vife,  are  now  made  a  part  of  her  separate 
estate,  and  in  respect  to  them  she  is  as  a  feme  sole.'^  And  an 
action  may  be  brought  by  her  alone  against  a  wrong-doer,  for 
an  injury  to  her  person  committed  previous  to  the  passage  of 
the  statute.^  f  Where  an  action  is  brought  against  a  married 
w^oman  for  assault  and  battery,  the  husband  may  be  made  a 


'  Rev.  Sts.  ch.  135,  §§  13,  13. 

'  Whiton  V.  Chicago  &c.  R.  R.  Co.  21  Wis.  305. 

=■  Sts.  (ff  1860,  ch.  90;  and  of  1863,  ch.  173. 

*  Mann  v.  Marsh,  35  Barb.,  68;  s.  c.  31  How.  373. 
"  Ball  V.  Bnllard,  53  Barb.  141. 

*  At  common  law,  the  recovery  in  such  an  action,  was  for  the  benefit  of  the 
husband,  and  he  could  biing  acire  facias  in  his  own  name  upon  a  judgment  re- 
covered in  the  names  of  himself  and  wife.  If  the  money  was  collected,  and 
came  to  the  hands  of  the  wife,  it  nevertheless  was  the  property  of  the  husband, 
and  went  to  his  representatives  (Com.  Dig.  Baron  &'  Feme,  X ;  Washburn  v. 
Hale,  10  Pick.  429;  Southworth  agst.  Packard,  7  Mass.  95;  Maun  agst.  Marsh, 
sxipra). 

In  Pennsylvania,  damages  for  injury  to  the  person  of  the  wife,  belong  to  her 
(Jeanes  v.  Davis,  3  Peun.  L.  J.  60). 

t  The  language  of  the  statute  referred  to  in  Ball  v.  Bullard,  s'/j>;y/,  is  as  fol- 
lows :  "Any  married  woman  may  bring  and  maintain  an  action  in  her  own  name, 
for  damages  against  any  person,  *  *  *  for  any  injury  to  her  person,  =^  *  * 
the  same  as  if  she  were  sole,  and  the  money  received  on  the  settlement  of  any 
such  action,  or  recovered  upon  a  judgment,  shall  be  her  sole  and  separate  prop- 
erty." 

A  husband  cannot  maintain  an  action  in  his  own  right,  for  mental  suflfering 
caused  l)y  injury  to  his  wife  (Hyatt  v.  Adams,  10  Mich.  180). 


^202  ASSAULT    AND    BATTERY.  §§  222,  223. 

party  defendant.  ^  In  such  case,  both  the  husband  and  the 
Avife  are  liable ;  and  judgment  being  against  both,  the  execu- 
tion nuist  follow  it,  and  direct  the  collection  of  damages  and 
costs  out  of  the  j^roperty  of  both.  The  judgment  becomes  a 
lien  on  the  real  estate  of  which  the  husband  is  owner  at  the 
time  of  its  rendition,  and  on  such  as  he  thereafter  acquires ; 
and  his  death  will  not  impair  the  lien  of  the  judgment,  nor 
the  right  of  the  plaintiff  to  enforce  it  against  the  land.  ^  For 
a  joint  assault  committed  l)y  husband  and  wife,  he  should  be 
sued  alone.  ^ 

§  222.  When  an  assault  and  battery  is  committed  by  A. 
and  B.  the  acts  are  distinct ;  the  stroke  of  A.  in  fact  not  being 
the  stroke  of  B.,  and  vice  versa.  But  by  operation  of  law, 
these  distinct  acts  are  amalgamated,  and  in  all  their  parts? 
become  the  united  act  of  both.  The  cause  of  action  is  one 
and  indivisible,  and  the  remedy  is  joint  or  several,  at  the 
option  of  the  plaintiff.^  The  action  will  lie  against  a  cor- 
poration, and  an  individual  may  be  joined  as  codefendant.  ^ 

§  223.  Where  in  an  action  for  assault  and  battery  against 
three,  two  of  the  defendants  being  non-residents  cannot  be 
served,  the  defendant  who  is  served  with  process,  cannot  ob- 
ject that  the  court  has  no  jurisdiction  for  the  want  of  service 
upon  the  other  defendants  by  a  motion  for  the  dismissal  of 
the  action.  The  plaintiif  may  discontinue  as  to  the  defend- 
ants not  served  at  any  time  before  the  trial,  and  proceed  to 
a  several  judgment   against   the   defendant    served.*'*      In 


'  Anderson  v.  Hill,  52  Barb.  238;  K  Y.  Code,  §  114;  ante,  §  38. 

'  Flanagan  v.  Tinen,  53  Barb.  587.  =  Sisco  v.  Cheeney,  Wright  R.  9. 

'  Sheldon  v.  Kibbe,  3  Conn.  214;  ante,  §  61. 

"  Brokaw  v.  N.  J.  R.  R.  Co.  3  Vroom,  328. 

^  McKenzie  v.  Hackstaff,  2  E.  D.  Smith,  75. 

*  In  the  above  case,  the  court  said:  "For  a  ti'espass  of  this  description,  the 
plaintiff  has  his  election  to  bring  a  sej^arate  action  against  one  of  the  trespassers, 
or  to  unite  them  all  in  one  action.  I  do  not  see  that  the  action  should  be  de- 
feated as  respects  the  defendant  served  because  he  has  failed  to  serve  process 
upon  the  other  defendants,  or  that  he  should  be  compelled,  when  he  has  served 
one  of  the  defendants,  to  strike  out  the  defendants  not  served.  He  may  have  it 
in  his  power  to  serve  the  other  defendants  before  the  cause  is  brouglit  to  a  hear- 
ing; and  the  ends  of  justice  would  be  served  by  having  but  one  trial,  and  by  his 


§224.  DECLARATION.  203 

Maryland  it  lias  been  held  that  where  01113^  one  of  the  joint 
wrong-doers  is  taken,  Imt  the  other  is  afterward  brought  in 
on  the  renewal  of  the  writ,  the  court  upon  motion  may  con- 
consolidate  the  cases,  though  they  stand  separately  on  the 
docket.  ^ 

25.  Declaration. 

§  224.  Causes  of  action  which  are  essentially  distinct,  %o 
that  the  verdict  will  not  show  for  which  it  was  rendered, 
cannot  be  united.  This  is  not  the  case  of  a  complaint  which 
charges  that  the  plaintiff  was  assaulted,  dragged  through  the 
public  streets,  detained  in  the  custody  of  the  sheriff,  and  re- 
strained of  his  liberty  "without  probable  cause,  by  which  he 
was  wounded,  injured  in  credit,  and  hindered  in  business.^ 
But  a  complaint  which  stated  facts  constituting  a  cause  of 
action  for  an  assault  and  battery,  and  also  a  cause  of  action 
for  slander,  both  in  a  single  count,  and  alleged  that  the 
plaintiff  was  greatly  injured  in  her  person,  and  also  in  her 
character  and  feelings,  and  claimed  damages  generally,  for 


obtaining  one  judgment  against  all  of  them.  If  he  fail  to  serve  them  no  juris- 
diction is  acquired  as  to  them,  nor  is  the  party  served  in  anywise  prejudiced.  I 
do  not  see  how  he  can  be  afl'ected  by  their  names  continuing  in  the  process,  or 
that  it  is  essential  to  his  right  that  the  proceedings  should  be  discontinued  as  to 
them." 

In  Northrup  agst.  Brush  &  Isaacs  (Kirby  R.  108),  Brush  invited  the  plaintiff 
into  a  private  room  of  a  coffee  house  in  New  Haven,  under  the  pretence  of  busi- 
ness, and  there  assaulted  him  with  loaded  pistols ;  and  Isaacs  came  into  the  room 
and  aided  Brush  in  further  assaulting  and  beating  the  plaintiff,  no  other  person 
being  present.  It  was  held  that  this  constituted  a  secret  assault  within  the  stat- 
ute, although  committed  in  a  public  house  and  by  a  plurality  of  persons.  The 
court  said:  "Two  persons  may  commit  an  assault  jointly;  and  if  it  is  out  of  the 
presence  or  view  of  others,  it  is  a  secret  assault;  and  although  the  person 
assaulted  may  proceed  against  one  of  them  in  a  common  action  of  trespass,  and 
take  the  otiier  for  a  witness,  yet  he  is  not  obliged  to  pursue  that  method.  One 
of  them  alone  may  be  insufficient  to  repair  the  damages;  and  it  may  also  be  un- 
safe for  him  to  rest  on  the  testimony  of  a  person  whose  malignity  had  induced 
him  to  join  in  a  secret  attack  upon  his  person ;  and  it  is  for  the  public  jjeace  and 
safety,  that  both  the  assailants  should  be  complained  of,  that  they  may  be  pun- 
ished criminalitery 

Where  a  railroad  conductor  unlawfully  puts  a  ])assenger  out  of  the  cars,  and 
nn  action  therefor  is  brought  against  the  company  and  the  conductor  jointly,  and 
a  verdict  is  rendered  against  the  company  and  in  favor  of  the  conductor,  the 
joinder  of  the  defendants  is  not  a  ground  of  exception  by  the  company  after  ver- 
dict (Moore  v.  Fitcliburg  R.  R.  Corp.  4  Gray,  465). 

'  Mitcliell  V.  Smitli,  4  Md.  403. 

'  Sheldon  v.  Lake,  40  How.  Pr.  R.  489 ;  9  Abb.  Pr.  R.  N.  S.  306. 


204  ASSAULT    AND    BATTERY.       ,  §  224. 

tlie  sum  of  $2,000,  was  held  bad  on  demurrer.^  ^  Under  a 
statute  antliorizing  one  or  more  counts  in  trespass  to  be 
joined  with  one  or  more  counts  of  trespass  on  the  case,  where 
all  such  counts  are  for  the  same  cause  of  action,  the  first 
count  in  the  declaration  Avas  in  trespass  for  forcibly  ejecting 
the  plaintiff  from  the  defendant's  cars,  and  beating  and  kick- 
ing him  in  so  doing,  he  at  the  time  being  lawfully  therein, 
as  a  passenger  from  New  Haven  to  Middletown.  The  other 
counts  were  in  case,  and  were  alleged  to  be  for  the  same 
cause  of  action.  But  the  second  count  not  only  alleged  an 
injury  to  the  plaintiff's  person,  by  Ijeing  carelessly  thrust 
from  the  defendant's  car,  but  it  also  alleged  that  for  certain 
hire  and  reward,  the  defendants  also  undertook  to  transport 
safely  to  said  Middletown,  the  plaintiff's  tool  chest,  and  that 
they  so  negligently  handled  and  transported  said  tool  chest, 
that  by  reason  of  their  negligence  and  cai'elessness,  they 
greatly  injured  the  same.  It  was  held  that  as  the  allegations 
in  respect  to  the  chest  of  tools  contained  everything  that  was 
essential  to  a  recovery,  both  counts  could  not  be  for  the 
same  cause  of  action,  and  that  there  was  therefore  a  mis- 
joinder of  counts.'^  Where,  however,  the  action  was  for 
fraudulently  inducing  the  plaintiff'  to  marry  the  defendant, 
and  to  cohabit  with  him,  and  also  for  assault  and  battery,  it 
was  held  that  as  the  causes  of  action  appeared  on  the  face 
of  the   complaint,   and   the   defendant    had  not  demurred, 

*  Anderson  v.  Hill,  53  Barb.  238,  overruling  Brewer  v.  Temple,  15  How.  Pr. 
K.  386. 

'  Havens  v.  Hartford  &  New  Haveu  R.  R.  Co.  2G  Conn.  220. 

*  In  Anderson  v.  Hill,  s^ipra,  the  court  said:  "The  causes  of  action  are  not 
separately  stated,  as  required  by  the  Code  and  every  other  tolerable  system  or 
idea  of  pleading;  but  I)oth  are  intermingled  and  woven  together  in  a  single 
fabric  of  manual  and  vocal  tort,  causes  of  action  for  words  and  blows  thrown 
into  '  hotch  pot.'  and  counted  upon  in  that  condition.  Nothing  is  claimed  as 
damages  for  the  injury  arising  from  the  battery  as  such,  and  nothing  for  the  in- 
jury arising  from  the  slander.  Neither  cause  is  claimed  to  have  injured  sepa- 
rately; but  the  injury  and  consequejit  damages  spring  from  the  union  of  the  two 
wrongs.  Should  a  verdict  be  rendered  in  the  plaintiffs  favor,  it  must  neces- 
sarily be  a  single  verdict,  and  it  would  not  appear,  and  no  one  could  ascertain, 
not  even  the  parties  themselves,  how  much  the  plaintiff  had  been  injured  in  per- 
son, or  how  much  in  character,  nor  what  measure  of  compensation  had  been 
awarded  for  either  injury.  Surely  justice  ought  not  to  be  so  administered,  un- 
less the  statute  imperatively  requires  it." 


§§  225-27.  DECLARATION.  205 

lie  had  waived  the  objection,  and  could  not  raise  it  upon  the 
trial,  as  the  court  had  jurisdiction,  and  the  complaint  stated 
facts  sufficient  to  constitute  a  cause  of  action.^ 

§  225.  When  one  of  the  causes  of  action  is  but  an  aggra- 
vation of  the  other,  such  as  entering  the  plaintiff's  close,  and 
committing  an  assault  and  battery  upon  him,  they  may  be 
united.^  Where  the  declaration  was  for  entering  the  plaint- 
iflPs  house,  taking  his  goods,  and  assaulting,  terrifying,  and 
imprisoning  the  wife  and  daughter  of  the  plaintiff,  and  the 
plaintiff  entered  on  the  record  a  release  of  damages  on  ac- 
count of  the  terrifying  and  imprisoning,  the  declaration  was 
held  good.^  And  where  the  defendant  was  charged  not 
merely  with  forcibly  breaking  and  entering  the  dwelling- 
house  of  the  plaintiff,  but  with  an  assault  and  battery,  and 
with  other  outrages  on  the  person  of  the  plaintiff,  as  well  as 
with  the  abuse  of  his  family,  and  that  part  of  the  charge  that 
related  t<5  the  forcible  entry  was  not  sustained,  it  was  held 
that  the  plaintiff,  notwithstanding,  was  entitled  to  recover.* 

S  226.  It  should  not  be  alieo;ed  that  the  assault  and  bat- 
tery  were  committed  on  different  days.  A  declaration  which 
charged  that  the  defendant  on  such  a  day,  and  on  divers 
other  days  and  times,  <fec.,  made  an  assault  on  the  plaintiff, 
was  deemed  bad  on  special  demurrer.^  But  it  has  been  held 
that  trespass  for  assault  and  false  imprisonment  may  be  laid 
diversis  diehus  et  vicihus.^ 

§  227.  Allegations  or  omissions  which  are  merely  formal 
will  be  disregarded.  The  name  given  to  the  action  in  the 
commencement  of  the  declaration  is  mere  surplusage,  the  sub- 
stance of  the  declaration  controlling  in  this  respectJ  The 
general  rule  which  governs  in  deciding  on  the  form  of  the 
declaration  in  all  cases,  is  that  it  should  state  the  gravamen 

'  Blossom  V.  Barrett,  37  N.  Y.  434 ;  N.  Y.  Code,  §§  144,  147,  148. 

^  Flinn  v.  Anders,  9  Ired.  328,  =  Heminway  v.  Saxtou,  3  Mass.  221. 

"  Sampson  v.  Henry,  13  Pick.  3G. 

'  English  V.  Purser,  G  East,  393 ;  2  Smith,  445';  but  see  ;ws^,  §  252. 

'  Burgess  v.  Freelove,  2  B.  &  P.  425.         '  Burdick  v.  Worrall,  4  Barb.  596. 


20G  ASSAULT    AND    BATTERY.  §  228. 

witli  sufficient  certainty,  that  the  defendant  may  know  what 
to  answer,  and  that  certainty  to  a  common  intent  is  suffi- 
cient.* In  an  action  for  driving  against  the  i^laintiiFs  chaise, 
whereby  he  was  thrown  out  and  injured,  the  declaration 
need  not  allege  to  whom  the  chaise  belonged  at  the  time  of 
the  occurrence.^  It  is  not  necessary  to  aver  that  the  assault 
and  battery  was  wilful  or  malicious.^ 

26.  Plea. 

§  228.  In  an  action  for  assault  and  battery,  a  plea  of 
the  general  issue  simply  denies  the  fact  of  the  trespass 
alleged,  and  any  justification — as  that  the  plaintiff  was  the 

'  Hopper  V.  Reeve.  1  Moore,  40?  :  7  Taunt.  698 ;  and  see  Howard  v.  Peete,  2 
Chit.  315. 

^  Andrews  v.  Stone.  10  Minn.  72. 

*  Formerly,  declarations  with  a  quod  cum  were  holden  bad,  and  no  judgment 
could  be  rendered  thereon  even  after  verdict ;  and  the  defect  was  not  considered  as 
cured  by  any  of  the  English  statutes  of  amendment  or  jeofails.  But  now  a  declara- 
tion of  this  description  is  not  batl,  even  on  special  demurrer.  In  Coffin  v.  Coffin,  3 
Mass.  358.  a  verdict  having  been  found  for  the  plaintiff"  upon  the  general  issue, 
the  defendant  moved  in  arrest  of  judgment,  on  the  ground  that  as  the  declara- 
tion began  '^ for  that  whereas^'''  (fcc,  by  way  of  recital,  it  was  not  sufficiently 
certain  and  positive.  The  objection  was,  however,  overruled.  The  court  said : 
In  the  action  before  us,  the  person  and  case  cannot  be  misunderstood  by  the 
court  from  the  unnecessary  use  of  the  word  ''  irftereas."'  Its  insertion  is  a  mere 
technical  mistake  in  form,  and  not  a  substantial  error;  and  we  think  that  it  is 
mere  surplusage,  and  after  verdict  shall  be  rejected.  It  is  not  necessary  to  de- 
cide what  judgment  would  have  been  given,  had  the  defendant  demurred  spe- 
cially to  this  declai'ation.  But  as  it  is  a  matter  of  practice,  and  the  negligence 
or  unskilfulness  of  attorneys  may  again  bring  up  the  question,  we  are  fully  satis- 
fied that,  as  the  mistake  is  merely  formal,  and  not  substantial,  a  general  demurrer 
would  not  avail  the  defendant. 

In  Benson  v.  Swift,  2  Mass.  50,  which  was  an  action  for  assault  and  battery, 
one  of  the  counts  in  the  declaration,  after  alleging  that  the  defendant  beat  the 
plaintiff  with  a  plank,  proceeded  as  follows:  "'And  there  afterwards,  the  said 
Benjamin  continuing  his  assault  last  aforesaid,  on  the  body  of  the  said  Benson  with 
force  and  arms,  viz.,  with  four  parts  of  two  and  a  half  inch  roise,  did  beat,"  &c. 
It  was  objected  to  this  count  by  the  defendant,  after  a  general  verdict  for  the 
plaiutitf,  on  a  motion  in  arrest  of  judgment,  that  it  alleged  an  assault  and  bat- 
tery with  a  continuando.  The  court  Avere,  however,  unanimous  in  the  opinion 
that  the  declaration  was  good.  Sedgwick,  J.,  said:  "Although  it  must  be  con- 
fessed that  the  words  made  use  of  in  this  count,  "  there  afterwards,"  are  usually 
inserted  to  disjoin  allegations  of  material  and  issuable  facts,  yet  in  this  case,  on 
a  careful  jDerusal,  it  does  appear  to  me  that  it  may  fairly  be  understood  that  the 
story  intended  to  be  told  by  the  phiintiif  is,  that  the  defendant  made  an  assault, 
and  that  during  the  continuance  of  that  assault  he  beat  the  plaintiff,  first  witli 
a  plank  and  then  with  a  rope.  The  assault  is  the  same;  but  one  assault  is 
alleged ;  the  beating  was  a  continued  injury,  and  the  instruments  only  different. 
This  seems  to  me  to  be  the  reasonable  construction,  and  not  tliat  two  distinct 
and  independent  injuries  are  intended  to  be  charged." 


§229.  PLEA.  207 

first  aggressor — must  be  set  up  by  special  plea.  Where, 
therefore,  the  jury  were  instructed  that  if  the  defendant 
committed  an  assault  and  battery  upon  the  person  of  the 
plaintiff,  he  might,  nevertheless,  prove  in  his  defense  under 
the  general  issue,  that  the  plaintiff  in  fact  made  the  first 
assault,  and  was  endeavoring  to  wrest  from  him  an  axe,  and 
that  the  assault  and  beating  complained  of  in  the  writ  were 
no  greater  or  other  than  were  necessary  on  the  part  of  the 
defendant  to  resist  and  defeat  the  unlawful  attempts  of  the 
plaintiff,  it  was  held  that  such  a  defense  was  inappropriate 
under  the  plea,  and  that  the  instructions  were,  therefore, 
erroneous.^  So,  likewise,  where  in  an  action  for  driving  a 
cart  over  the  plaintiff,  the  defendant  endeavored  to  show, 
under  the  plea  of  not  guilty,  that  the  plaintiff  slipped  off  of 
the  edge  of  the  pavement  just  before  the  defendant's  horse 
and  cart,  and  that  the  injury  occurred  without  any  negli- 
gence of  the  defendant,  it  was  held  that  this  admitted  the 
trespass  to  have  been  the  act  of  the  defendant,  and  set  up 
matter  of  excuse,  and  that  it  should  therefore  have  been 
specially  pleaded.^  ^ 

§  229.  When  the  defendant  interposes  a  special  plea  of 
justification,  he  must  either  state  circumstances  which  excuse 

'  Jewett  V.  Goodall,  19  N.  Hamp.  562;  1  Sauncl.  PI.  &Ev.  95;  1  Selw.  N. 
P.  125;  Lairv.  Abrams,  5  Blackf.  191. 

=  Hall  V.  Fearnley,  3  Gale  &  D.  10;  12  L.  J.  N.  S.  22;  7  Jur.  61. 

*  To  a  declaration  charging  that  the  defendant  assaulted  the  plaintiff,  im- 
prisoned him,  and  kept  him  in  prison  contrary  to  law,  and  against  his  will,  the 
defendant  pleaded  that  he  committed  the  trespass  by  leave  and  license  of  the 
plaintiff.  On  special  demurrer,  the  plea  was  held  bad,  as  amounting  to  the 
general  issue,  so  far  as  regarded  the  assault  (Christopherson  v.  Bare,  11  Q.  B. 
473;  12  Jur.  374;  17  L.  J.  109). 

Whether  the  plea  was  not  bad  for  the  same  reason  as  regarded  the  imprison- 
ment— quere  (lb.). 

Trespass  was  brought  against  three  defendants  for  an  assault  committed  in 
Bristol.  Two  of  them  were  constables  of  Oxford,  and  had  come  down  and 
taken  the  plaintiff  at  Bristol  (thus  committing  the  assault),  on  suspicion  of  his 
having  stolen  a  hol'se  belonging  to  the  other  defendant  in  Oxfordshire.  The 
declaration  set  out  all  the  trespasses  to  have  been  done  without  reasonable  or 
probable  cause.  The  two  constables,  having  pleaded  not  guilty,  it  was  held  that 
they  might  give  the  special  matter  in  evidence  in  mitigation  of  damages  to  show 
that  there  was  reasonable  and  probable  cause,  but  that  as  they  had  acted  out  of 
their  jurisdiction,  they  were  not  entitled  as  constables  to  give  the  special  matter 
in  evidence  under  the  general  issue  as  a  defense  (Rowcliffe  v.  Murrav,  1  Car.  & 
M.  513). 


208  '  ASSAULT    AND    BATTERY.  "  §  229. 

the  act  charged,  or  show  it  to  be  lawful,  thereby  admitting 
the  act ;  otherwise,  his  plea  only  amounts  to  the  general 
issue.  Mr.  Chitty,^  in  support  of  this  rule,  states  the  follow- 
ing case  :  In  trespass  for  an  assault  and  battery,  when  the 
defendant  pleaded  that  he  was  riding  a  horse  in  the  king's 
highway,  and  that  his  horse,  being  frightened,  ran  away  with 
him,  and  that  the  plaintiif  was  desired  to  go  out  of  the  way 
and  did  not,  and  the  horse  ran  upon  the  plaintiff  against  the 
defendant's  will ;  on  demurrer,  the  plaintiff  Lad  judgment, 
because  the  defendant  had  assumed  to  justify  the  battery 
and  yet  had  not  confessed  that  which  amounted  to  a  battery 
by  himself  For  if  the  horse  ran  away  against  the  will  of 
his  rider,  it  could  not  ])e  said,  with  any  color  of  reason,  to  be 
a  battery  in  the  rider ;  and  it  was  admitted  by  the  court, 
that  if  the  defendant  had  pleaded  not  guilty,  this  matter 
might  have  acquitted  him  upon  evidence.  ^  In  Blood  v. 
Adams,^  the  declaration  charged  the  defendant  with  making 
a  violent  assault  upon  the  plaintiif — that  he  beat,  bruised, 
and  wounded  him — and  that  he  forcibly  and  violently  ejected 
him  from  a  railroad  car.  The  defendant  pleaded  the  general 
issue  and  special  pleas  in  justification.  The  latter  began 
with  a  traverse  of  all  that  was  alleged  in  the  declaration,  ex- 
cept the  ejecting  the  plaintifl:'  from  the  cars,  and  as  to  that, 
set  lip  a  special  justification  that  the  defendant  was  the  con- 
ductor of  the  train,  and  that  the  plaintiff  was  in  the  cars 
without  a  ticket,  and  that  upon  being  called  upon  by  the  de- 
fendant to  pay  his  fare,  he  refused.  The  pleas  then  went  on 
to  say  :  "  And  the  said  defendant,  then  and  there  required  of 
the  plaintiff,  as  he,  the  said  defendant  for  the  cause  aforesaid, 
lawfully  might,  that  he,  the  said  plaintiff,  should  then  and 
there  leave  the  said  train  of  cars,  and  be  no  further  carried 
as  a  passenger  thereby.  And  thereupon  the  said  plaintiff 
did,  then  and  there,  in  pursuance  of  the  said  requirement  and 
command  of  the  said  conductor,  as  aforesaid,  leave  the  said 


'  1  Chitty's  PI.  511. 

^  Gibbon  v.  Pepper,  2  Salk.  637 ;  s.  c.  1  Ld.  Raym.  38.  '  33  Vt.  52. 


§§  230-32.  PLEA.  209 

train  of  passenger  cars,  wliicli  is  the  same  ejecting,  &c."  It 
was  held,  that  as  the  alleged  trespass  was  not  admitted,  the 
pleas  in  justification  were  bad,  as  amounting  only  to  the 
general  issue. 

§  230.  Son  assault  demesne,  which  is  a  plea  averring  that 
the  plaintiff  first  assaulted  the  defendant,  who  thereupon 
necessarily  committed  the  alleged  assault  in  his  own  defense, 
confesses  the  assault,  although  the  allegation  is  '*  before  the 
time  when,"  &c. ;  ^  and  so,  likewise,  although  laid  before  the 
day  of  the  memorandum  of  the  declaration,  and  found  to 
have  been  committed  afterward.^ 

§  231.  If  the  defendant  is  compelled,  in  self-defense,  to 
employ  more  than  moderate  force,  he  must  allege  it  in  his 
plea.^  Where,  therefore,  the  declaration  alleged  that  the  de- 
fendant assaulted,  seized,  violently  pulled  and  dragged  about, 
struck  and  imprisoned  the  plaintiff,  it  was  held,  that  a  plea 
which  justified  the  arrest  and  imprisonment  by  virtue  of 
legal  process,  was  bad,  in  not  averring  that  the  acts  of  vio- 
lence were  rendered  necessary  by  the  resistance  of  the 
plaintiff.*  But  the  defendant  need  not  minutely  detail  the 
circumstances  under  which  the  plaintiff'  first  assaulted  him.^ 

§  232.  A  plea  which  answers  the  assault,  answers  also 
the  battery.^  Where  the  declaration  stated  that  the  defend- 
ant assaulted  the  plaintiff,  and  wrenched  a  stick  from  his 
hand,  and  with  the  said  stick,  and  with  his  fists,  gave  the 
plaintiff  many  violent  blows,  and  the  defendant  pleaded  as 
to  assaulting  the  plaintiff  with  the  stick  and  his  fist  son 
assault  demesne,  it  was  held,  after  verdict,  that  the  plea 
sufficiently  justified  tlie  battery  with  the  stick,  as  well  as  the 
assault  with  it.''' 

'  Wise  V.  Hodsoll,  3  Per.  &  D.  510;  11  Ad.  &  E.  81G;  4  Jur.  553. 

""  Hay  V.  Kitchen,  1  Wils.  171. 

'  Mellen  v.   Thompson  et  al.,   33  Vt.  407,  referrino- to  Chittv's  Precedents, 
b.  3,  1071. 

*  Kreger  v.  Osborn,  7  Blackf.  74.  '  Mellen  v.  Thompson,  sup?'a. 

"  Bryan  v.  Bates,  15  111.  87. 

'  Blunt  V.  Beaumont,  2  C.  M.  &  R.  413;  4  Dowl.  P.  C.  319;  5  Tyr.  1100. 

Vol.  I.— 14 


210  ASSAULT    AND    BATTERY.  §  233. 

§  233.  The  plea  of  molliter  manus  impo8idt^  includes 
justifications  of  property  real  or  personal,  the  removal  of  a 
person  unlawfully  uj^on  the  premises  or  in  the  house  of  the 
defendant,  arrest  under  process,  c^c.  Pleas  in  justification 
of  the  moderate  correction  of  an  apprentice  or  pupil  are 
very  similar  in  principle.  None  of  these  pleas,  in  the  usual 
and  general  form,  are  a  good  answer  to  a  declaration  alleging 
extraordinary  or  aggravated  force  and  violence,  for  the  reason 
that  the  right  w^hich  the  defendant  sets  up,  does  not  pri- 
marily authorize,  nor  its  exercise  require,  anything  more  than 
gentle  force.  The  j^lea  only  shows  a  right  to  use  moderate 
force,  wdiile  it  admits  the  declaration  to  be  true  which  charges 
an  immoderate  and  aggravated  use  of  it.  If  the  plaintiff 
forcibly  resisted  the.  defendant  in  this  exercise  of  bis  right, 
whereby  it  became  necessary,  and  the  defendant  became 
entitled  to  use  more  than  moderate  or  gentle  force  to  assert 
bis  right,  this  also,  must  be  set  forth  in  the  plea ;  and  wben 
tbis  is  done,  the  plea  becomes  analogous  to  the  plea  of  son 
assault^  and  it  is  necessary  to  set  forth  minutely  or  particularly 
the  nature  and  extent  of  tlie  force  used  by  the  plaintiff,  to 
make  the  plea  a  sufficient  answer  to  the  declaration.^  There- 
fore sucb  a  plea  to  justify  the  turning  of  the  plaintiff  out  of 
the  defendant's  house,  wbere  she  continued  against  his  will, 
is  no  answer  to  a  charge  against  the  defendant,  for  striking 
the  plaintiff  repeated  blows,  and  with  great  force  and  violence, 
several  times  knocking  ber  down.^  So  likewise  where  in  an 
action  against  a  schoolmaster  for  an  assault  and  battery  on  a 
scholar,  the  plea  alleged  that  tbe  plaintiff  was  insolent,  and 
refused  to  obey  the  reasonable  commands  of  the  defendant, 
and  that  thereupon  the  defendant  moderately  chastised  him ; 
but  averred  no  acts  of  the  plaintiff^  which  called  for  excessive 


'  Mellen  v.  Thompson,  32  Vt.  407. 

^  Gregory  v.  Hill,  8  Term  R.  299 ;  and  see  Johnson  v.  JSTorthwood,  1  Moore, 
420 ;  7  Taunt.  689. 

*  That  the  defendant  liid  hands  on  the  plaintiff  gently.  Mollify  manvs 
imposuit,  is  an  answer  to  the  battery  (Titley  v.  Foxall,  2  Ld.  Ken.  308). 


§§  234,  235.  PLEA.  211 

severity  on  tlie  part  of  the  defendant ;  it  was  held  that  the 
plea  did  not  disclose  a  sufficient  justification.^ 

§  234.  Under  the  foregoing  rule,  a  plea  of  moUiter  Tnanus 
imposuit,  would  not  be  a  good  answer  to  a  declaration  alleg- 
ing a  wounding  of  the  plaintiff.  In  an  early  case  in  Ken- 
tucky, where  in  action  for  assault  and  battery  and  wounding, 
the  plea  alleged  that  the  defendants  gently  laid  h^nds  on  the 
plaintiff  to  arrest  him  for  felony,  and  inflicted  no  more  injury 
than  was  necessary  to  effect  the  arrest ;  it  was  held  that  as 
the  plea  did  not  justify  the  wounding,  it  was  bad.^  Subse- 
quently in  the  same  State,  where  in  an  action  for  trespass  on 
land,  and  for  assault  and  battery  and  wounding,  the  defend- 
ants pleaded  that  the  plaintiff  had  caused  a  tree  to  fall  across 
a  navigable  stream  down  which  they  were  sailing,  and  that 
to  enable  them  to  proceed,  they  were  obliged  to  remove  the 
tree  ;  that  the  plaintiff  stood  upon  it  with  an  ax,  threatening 
to  resist  the  removal,  and  that  they  thereupon  gently  laid 
hands  upon  him ;  it  was  held  that  the  plea  was  not  sufficient, 
as  it  did  not  justify  the  wounding.^ 

§  235.  When  in  an  action  for  assault  and  battery  the 
declaration  charges  several  distinct  and  separate  assaults,  the 
defendant's  plea  must  answer  all  of  the  trespasses,  and  show 
the  circumstances  leading  to  each  assault,  which  exonerate 
him  from  liability  ;*  and  if  the  several  assaults  are  laid  in 
separate  counts,  the  plea  must  show  distinct  occasions  upon 
which  the  defendant  was  justified  in  committing  each  partic- 
ular trespass.^  Trespass  for  that  the  defendant  assaulted  the 
plaintiff,  and  beat,  bruised,  pushed,  dragged  and  pulled 
about,  kicked,  wounded,  and  ill-treated  him,  and  then 
knocked  down  and  prostrated  him  on  the  deck  of  a  certain  ves- 
sel, and  then  hit  and  struck  him  numerous  blows,  tfec.     Plea, 


'  Hathaway  v.  Rice,  19  Vt.  103.  ^  Boles  v.  Pinkerton,  1  Dana,  453. 

^  Brubukcr  v.  Paul,  7  Dana.  428;  aivJ  see  French  v,  Marstin,  4  Fost.  440. 
'  M'Curday  v.  Drisooll,  1  C.  «&   i\T.  G18;  Stammers  v.  Yearsley,  10  Bing.  35; 
Nodcn  V.  Jolinson,  l(i  Q.  B.  218;  Bush  v.  Parker,  4  M.  &  S.  588. 
'  M'Curday  v.  DriscoU,  supra. 


212  ASSAULT  AND  BATTERY.  §  236. 

as  to  the  assaulting,  beating  and  ill-treating  of  the  plaintiff, 
justification  as  captain  of  a  vessel  wherein  the  plaintiff  and 
other  persons  were  passengers,  and  that  the  plaintiff'  made  a 
great  noise,  disturbance  and  affray  on  board,  and  was  then 
fighting  with  a  certain  other  person,  "  then  also  being  a  j)as- 
senger  in  and  on  board  of  the  said  vessel,  and  whose  name 
was  to  the  defendant  unknown,"  and  was  striving  to  beat 
and  w^ound  the  said  person ;  wherefore  the  defendant,  for 
the  preservation  of  the  peace,  and  to  preserve  due  order  and 
discipline  in  the  vessel,  &c.,  then  as  such  captain,  moUiter 
mamis  imposuit.  Replication  de  injuria.  It  was  held  that 
the  allegation  that  the  defendant  knocked  down  and  pros. 
trated  the  plaintiff  on  the  deck  was  alleged  in  the  declaration 
as  a  distinct  assault  from  the  others,  and  that  it  was  not  cov- 
ered by  the  justification  in  the  plea,  and  that  consequently, 
upon  proof  of  such  assault,  the  plaintiff  was  entitled  to  dam- 
ages.^ 

§  236.  If  the  defendant  would  plead  in  bar  generally,  he 
may  commence  his  plea  with  such  a  general  reference  to  the 
charges  contained  in  the  declaration  as  will  necessarily  em- 
brace the  whole  subject  of  complaint;  or  he  may  set  down  in 
detail  the  several  alleged  acts  w^hich  he  proposes  to  justify. 
But  in  the  latter  case  the  justification  is  usually  confined  to 
the  acts  thus  specified.  So  that  if  the  declaration  alleges  a 
mayhem  or  a  wounding  and  knocking  the  j^laintiff'  down,, 
and  the  plea  is  silent  in  these  particulars,  such  charges  will 
not,  in  general,  be  held  to  come  within  the  scope  of  the  jus- 
tification.^* Where  therefore,  in  an  action  for  assaulting, 
beating  and  ill-treating  the  plaintiff,  and  beating  and  strik- 
ing her  down  with  a   truncheon,  whereby  her  thigh  was 

*  Noden  v.  Johnson,  myra.  ^  Hathaway  v.  Eice,  19  Vt.  103. 

*  The  answer  set  up  three  separate  defenses :  First,  a  denial  of  the  assault  and 
battery;  second,  that  the  plaintiff  made  the  first  assault,  which  was  repelled  by 
the  defendant  in  self-defense ;  third,  that  the  defendant  was  in  his  own  dwell- 
ing, and  the  lalaintiff  was  unlawfully  there  and  refused  to  leave,  and  he  used 
suiiicient  force  to  put  him  out,  and  only  such  force  as  was  necessary.  Held,  that 
these  defenses  were  consistent  with  each  other,  both  at  common  law  and  under 
the  statute  of  Missouri  (Rhine  v.  Montgomery,  50  Mo.  560 ;  referring  to  Nelsoa 
V.  Brodhack,  44  lb.  596;  Lansingh  v.  Parker,  9  How.  Pr.  288). 


§  236.  PLEA.  213 

broken,  the  defendant  pleaded,  first,  not  guilty ;  and  second- 
ly, as  to  assaulting,  beating  and  ill-treating  the  plaintiff,  that 
the  defendant  was  possessed  of  a  house,  and  the  plaintiff  was 
making  a  disturbance  therein,  and  the  defendant  gently  laid 
his  hands  on  her  to  turn  her  out ; — it  was  held  that  the 
special  plea  was  bad,  in  not  setting  up  a  justification  of  the 
striking  and  wounding.^  So  like^vise,  where  the  plaintiff 
declared  for  an  assault  in  seizing  and  laying  hold  of  him, 
pulling  and  dragging  him  about,  striking  him,  forcing  him 
out  of  a  field  into  and  through  a  pond,  and  then  imprisoning 
him,  and  the  plea  justified  the  assaulting,  seizing  and  laying 
hold  of  the  plaintiff,  and  pulling  and  dragging  him  about; 
it  was  held  not  a  sufficient  answer  to  the  entire  charo;e  in 
the  declaration.^  *  Where,  however,  the  declaration  was  for 
assault,  battery  and  tearing  of  clothes,  and  the  defendant 
pleaded  not  guilty  of  the  said  supposed  assaults  in  manner 
and  form  as  the  plaintiff  complained,  it  was  held  that  this 
included  a  denial  of  the  battery  and  tearing  of  the  clothes, 


'  Oakes  v.  Wood,  2  Mees.  &  W.  791. 

^  Bush  V.  Parker,  4  M.  &  S.  588;  1  Bing.  N.  C.  72. 

*  In  an  action  for  an  assault,  tlie  defendant  pleaded  that  he  and  twenty-one 
otliers  were  possessed  of  a  close,  and  were  thereon  lawfully  playing  a  lawful 
game  at  cricket;  that  the  plaintift'came  unlawfully  on  the  close,  and  interrupted 
the  defendant  and  the  twenty-one  in  playing  the  lawfiU  game,  whereupon  the 
defendant,  in  his  own  right  and  by  the  authority  of  the  twenty-one,  requested 
him  to  depart  from  the  close,  and  desist  from  disturbing  their  game,  which  he 
refused;  whereupon  the  defendant  removed  him  out  of  the  close.  It  appeared 
that  the  defendant  and  twenty-one  others  were  playing,  but  were  not  otherwise 
possessed  of  the  field,  and  that  the  plaintiff  interrupted  them  by  remaining  on 
the  ground  occupied  by  the  players  when  requested  to  leave  it.  It  was  held  that 
the  facts  might  have  constituted  a  justification  in  defense  of  the  lawful  game,  if 
so  pleaded;  but  that  as  the  plea  justified  the  trespass  in  right  of  the  jiossession 
of  the  close,  it  was  not  proved  (Holmes  v.  Bagge,  1  El.  &  B.  782;  22  L.  J.  N.  S. 
Q.  B.  30r). 

To  a  declaration  of  trespass  qnnre  dausiim  f regit,  containing  a  count  for  an  as- 
sault, the  defendant  pleaded,  among  other  things,  liherum  tenementum  in  J.  W., 
and  a  justification  of  the  trespass  on  that  ground ;  and  that  because  the  plaintiff 
was  "  unlawfully  in  possession,"  the  defendants,  as  servants  of  J.  W.,  and  by  his 
command,  ejected  her;  and  in  so  doing,  because  she  resisted,  committed  the 
assault.  The  plaintiff  replied  that  she  was  lawfully  possessed,  and  was  lawfully 
entitled  to  her  possession  as  against  the  defendants,  with  a  special  traverse  that 
the  plaintiff  was  unlawfully  in  possession  or  occupation.  It  was  held,  on  special 
demurrer  to  the  replication,  that  the  plea  was  substantially  one  of  Uberum  tene- 
mentum, and  therefore  bad  as  attempting  to  justify  an  assault  (Roberts  v.  Taylor, 
3  Dowl.  &  L.  1). 


214  ASSAULT  AND  BATTERY.  §  237. 

as  well  as  the  assault.^  And  where,  in  an  action  of  trespass 
for  assault  and  battery,  the  plea  commenced  in  bar  to  the 
action  generally,  and  proceeded  to  allege  that  before  and  at 
the  several  times  in  the  declaration  mentioned,  the  defendant 
was  a  schoolmaster  and  the  plaintiff  his  scholar ;  that  the 
plaintiff  was  then  and  there  guilty  of  the  insolence  and  dis- 
obedience alleged,  whereupon  the  defendant  corrected  him, 
&c.,  it  was  held  that  in  order  to  give  to  this  language  its 
obvious  and  natural  import,  it  should  be  understood  in  a 
plural  and  distributive  sense,  as  applying  to  different  occa- 
sions on  which  the  trespasses  were  charged,  and  that  it  must 
be  taken  as  a  plea  to  the  whole  declaration.^ 

§  237.  When  the  plaintiff's  declaration  sets  forth  a  very 
aggravated  assault  and  batteiy,  and  not  only  charges  the 
defendant  with  cruelly  beating,  but  also  with  kicking  and 
choking  him,  such  allegations  are  not  to  be  regarded  merely  as 
matter  in  aggravation  of  the  assault  and  battery  complained 
of,  and  therefore  covered  and  answered  by  any  plea  which 
would  be  a  good  answer  to  a  simple  charge  of  that  kind,  but 
as  substantive  allegations  of  various  acts  of  trespass  to  the 
person  of  the  plaintiff;  and  any  plea  which  admits  the 
whole  declaration,  and  professes  to  justify  all  that  is 
charged  in  it,  must  contain  sufficient  to  apparently  justify 
the  defendant  for  all  that  the  declaration  alleges.  But  in 
such  cases  a  plea  averring  that  the  plaintiff  made  the  first 
assault,  and  justifying  the  assault  and  battery  in  self-defense, 
is  a  good  answer  to  the  whole  declaration.  And  where  the 
attendant  circumstances  are  mere  matters  of  aggravation  of 
the  original  trespass,  and  do  not  in  themselves  constitute 
substantive  trespasses,  the  defendant  need  only  justify  the 
principal  act.'^  But  if  he  fail  to  justify  the  latter,  his  plea 
will  be  insufficient.  To  a  count  in  trespass  charging  the 
defendant  with  having  assaulted  the  plaintiff  on  board  a 
ship  on  the  high  sea,  and  forcing  and  compelling  him,  then 

'  Weathrell  v.  Howard,  3  Bing.  135;  10  Moore,  503. 

^  Hathaway  v.  Rice,  19  Vt.  102.  =  Taylor  v.  Cole,  1  H.  Bl.  561. 


§  238.  PLEA.  215 

being  sick,  to  stand  and  remain  standing  on  the  deck  for  the 
space  of  one  hour,  a  plea  in  justification  as  to  the  forcing  and 
compelling  the  plaintiff  to  stand  and  remain  standing  upon 
the  deck  was  held  bad  as  attempting  to  justify  that  which 
was  mere  matter  of  ao;ojravation/ 

§  238.  The  plea  may  be  amended  as  to  a  substantive  de- 
fense to  the  identical  transaction  charged.  In  a  late  case  in  New 
York,^  after  verdict  for  the  plaintiff,  a  new  trial  was  granted 
for  the  refusal  of  the  court  to  allow  the  defendant  to  amend 
his  answer.  The  proposed  amendment  was  in  substance 
that  the  assault  and  battery  complained  of  was  a  part  of  the 
identical  transaction  for  wdiich  the  defendant'  had  first  re- 
covered damages  in  action  for  assault  and  battery  against  the 
plaintiff.  It  was  held  that  as  this  formed  a  substantive 
defense  the  amendment  was  a  matter  of  right.  But  where 
the  proposed  amendment  relates  to  a  difierent  transaction 
from  that  alleged  and  proved  by  the  plaintifi',  it  will  not  be 
allowed.  Therefore,  where,  in  an  action  for  assaulting  the 
plaintiff,  the  defendants  pleaded  that  the  plaintiff'  was  beat- 
ing a  certain  boy,  whose  name  was  to  the  defendants  un- 
known ;  and  that  the  defendants,  to  prevent  his  beating  the 
boy,  quietly  laid  their  hands  upon  him.  Replication  that 
the  boy  in  the  plea  mentioned  was  one  B.  W.,  and  was  and 
is  the  lawful  son  of  the  plaintiff*,  of  the  age  of  ten  years ;  and 
that  B.  W.  refused  to  obey  his  lawful  commands,  whereupon 
the  plaintiff'  moderately  chastised  him.  Rejoinder  that  the 
plaintiff  at  the  time  when,  tfec,  was  beating  B.  W.  with 
more  violence  than  was  proper  and  reasonable.  It  was 
proved  on  the  part  of  the  plaintiff',  that  just  before  the  de- 
fendants interfered  with  him  he  had  beaten  his  son  B.  W., 
^vho  was  ten  years  old,  with  a  strap,  but  not  immoderately ; 
and  it  was  proved,  in  behalf  of  the  defendants,  that  after  the 
plaintiff  had  beaten  his  elder  son,  B.  W.,  he  began  beating 
the  next  younger  son,  when  the  defendants  laid  hold  of  him. 

'  Griffiths  V.  Dunnett,  8  Scott  N.  R.  83G,  =  Bailey  v.  Kay,  50  Barb.  110. 


216  ASSAULT   AND    BATTERY.  §  239. 

It  was  held  that  the  issue  was  limited  to  the  question  of  the 
excessive  beating  of  B.  W.,  and,  as  the  two  boys  had  both 
been  beaten,  the  judge  at  the  trial  would  not  allow  any 
amendment  as  to  the  name  of  B.  W.^ 

27.  liepUcation. 

§  239.  In  trespass  to  the  jDerson,  if  the  defendant  has 
pleaded  merely  in  excuse,  and  not  in  justification,  the  replica- 
tion de  injuria  or  de  son  tort  demesne  is  in  general  proper  if 
the  plea  be  wholly  untrue.  But  if  the  plea  be  true,  and  the 
plaintiff  did  in  fact  commit  what  in  point  of  law  amounted 
to  the  first  assault,  the  plaintiff  must  reply  specially ;  and  it 
is  said  that  if  the  defendant's  battery  was  outrageous,  or 
more  than  was  necessary  for  self-defense,  that  matter  should 
be  so  replied;  ^  and  the  plaintift"  should  rej)ly  any  fact  upon 
which  he  relies  to  show  that  the  defendant  became  a  tvQ^- 
'psisser  ah  i?iitio.^'^     It  seems  that  in  New  Hampshire,  Ver- 


'  Wiuterburn  v.  Brooks,  2  Car.  &  K.  16. 

^  Great  Falls  Co.  v.  Worster,  15  N.  Hamp.  412  ;  Dye  v.  Leatherdale.  3 
Wils.  20  ;  Taylor  v.  Cole,  3  D.  &  E.  292  ;  1  H.  Blk.  555  ;  Gundry  v.  Felthain, 
1  D.  &  E.  338  ;  1  Cbitty's  PI.  410,  567,  568. 

^  Esty  V.  Wilmot,  15  Gray,  168,  cmd  cases  cited. 

*  In  assault,  where  there  is  a  justification  of  molliter  manus  to  all  the  counts  in 
the  declaration,  the  plaintifl"  cannot  be  admitted  to  prove  excess  unless  he  has 
new  assijjned ;  otherwise  where  there  is  a  justilication  pleaded  to  one  count,  and 
the  general  issue  to  another.  And  the  words  in  the  plea  of  molliter  manus  "  as 
was  lawful  for  the  cause  aforesaid,"  do  not  allow  the  plaintiff  to  recover  on  the 
general  replication  on  the  ground  of  excess  in  the  defendant  (Bowen  v.  Parrv, 
1  Car.  &  P.  394). 

In  an  action  for  assault  and  battery,  de  injuria  is  a  good  replication  to  a  plea 
stating  that  J.  E.  and  S.  B.  were  possessed  of  a  close,  and  that  the  plaintiff 
was  making  a  noise,  &c. ;  and  the  defendants,  as  the  servants  of  .T.  E.  and  S. 
B.,  and  by  their  command,  requested  him  to  depart,  and  he  refused,  where- 
upon the  defendants,  as  the  servants  of  J.  E.  &  S.  B.,  gently  laid  hands,  &c., 
and  because  the  plaintiff  resisted  the  defendants,  as  servants,  and  by  comrnand, 
«fec.,  a  little  hurt,  &c.  (Piggott  v.  Kemp,  1  C.  &  M.  197;  3  Tyr.  128). 

Where,  in  an  action  for  an  assault,  the  plaintiff  declared  that  the  defendant 
beat,  bruised  and  wounded  him ;  plea  son  assault  demetme,  and  the  plaintifl  re- 
plied de  injuria  sua  propria  ;  and  it  was  proved  that  the  latter  being  on  horse- 
back, got  oil"  and  held  up  his  stick  at  the  defendant,  when  the  latter  struck 
him;  it  was  held  that  the  plaintiff  should  have  replied  specially;  and  it  having 
been  left  to  the  jury  whether  from  the  evidence  the  plaintiff  was  so  far  the  ag- 
gressor as  to  justify  the  assault  committed  on  him  by  the  defendant,  and  they 
having  found  in  the  affirmative,  the  Court  of  Common  Pleas  refused  to  grant  a 
new  trial  (Dale  v.  Wood,  7  Moore,  33). 

In  trespass  for  an  assault  and  battery,  the  replication  de  injuria  to  a  plea  that 


§  240.  REPLICATION.  217 

moiit,  Massachusetts,  Maryland,  Indiana,  and  Illinois  the 
plaintiff  may  prove  that  the  defendant's  battery  was  exces- 
sive without  a  special  replication.^  This  rule  is  favorable 
to  the  plaintiff,  as  it  enables  him  on  the  trial  to  contest  both 
points  before  the  jury,  and  to  recover,  if  either  be  found  in 
his  favor,  instead  of  being  required  to  hazard  his  case  upon 
a  single  point,  the  result  usually  obtained  by  pleading 
specially.  Where,  however,  the  plaintiff,  in  answering, 
would  justify  his  own  assault,  he  must  new  assign  the  mat- 
ter of  justification.^ 

.  §  240.  A  replication  which  does  not  meet  a  material 
ground  of  justification  set  up  in  the  j^lea,  will  of  course  be 
bad.  To  a  declaration  for  assaulting  and  seizing  the  plaintiff, 
<fcc.,  the  defendant  pleaded  that  he  was  lawfully  possessed  of  a 
dwelling-house,  and  that  the  plaintiff'  was  unlawfully  therein 
with  force  and  arms  making  a  noise  and  disturbance  in  the 
said  house  without  the  defendant's  leave;  and  defendant 
thereupon  requested  him  to  de2:)art,  which  he  refused  to  do ; 
whereupon  the  defendant,  in  the  defense  of  the  possession  of 
his  house,  &g.,  molUter  mamis^  &c.,  to  remove,  and  did  remove 
the  plaintiff  therefrom.  Replication,  that  the  said  dwelling 
house  was  a  common  inn,  and  that  the  plaintiff  at  the  times 
when,  <fec.,  was  lawfully  therein  as  a  guest  consuming  liquids 
there  sold  by  the  defendant,  which  the  plaintiff'  had  paid  for, 
and  at  a  reasonable  time,  wherefore  the  plaintiff'  refused  to 
depart  when  requested,  as  he  lawfully,  &c.,  "  and  the  defend- 


the  plaintiff  was  the  defendant's  apprentice,  whom  he  moderately  chastised  for 
improper  conduct,  does  not  put  in  issue  the  question  of  the  moderation  of  the 
chastisement  (Penn  v.  Ward,  3  C.  M.  &  R.  388;  4  Dowl.  P.  C.  215;  1  Gale 
189;5Tyr.  975). 

Where  to  an  action  for  an  assault  the  defendant  justifies  in  defense  of  his 
master,  the  plaintiff  cannot  show  his  assault  on  the  master  to  have  been  justifia- 
ble on  the  general  replication  de  injuria  sua  froinda^  but  must  new  assign 
(Webber  V.  Liversuch,  Peake's  Add.  Cas.  51). 

'  Dole  V.  Erskine.  35  N.  Hamp.  503  ;  Elliot  v.  Kilburn,  2  Vt.  474  ;  Bartlctt 
V.  Churchill,  24  lb.  218  ;  Melleu  v.  Tiiompson,  32  lb.  407;  Hannen  v.  Edes,  15 
Mass.  347;  Reece  v.  Taylor,  1  liar.  15;  Gaither  v.  Blowers,  11  Md.  530;  Fisher 
V.  Bridges,  4  Blackf.  518;  Philbrick  v.  Foster,  4  Ind.  442;  Ayres  v.  Kelly,  11 
III.  17. 

°  Elliot  V.  Killjnrn,  siqrra. 


218  ASSAULT    AND    BATTERY.  §  241. 

ant  of  Lis  own  wrong  committed  the  trespasses  in  the  said 
plea  mentioned,  in  manner  and  form  as  in  the  declaration, 
alleged."  It  was  held  that  the  replication  w^as  bad,  because 
it  did  not  answer  the  allegation  of  the  plaintiff's  misconduct. 
Lord  Denmau,  C.  J.,  further  held  that  the  replication  was 
double,  and  Earle,  J.,  that  it  was  argumentative.^  * 

§  241.  When  tlie  declaration  contains  but  one  count,  and 
a  justification  is  pleaded,  to  which  the  plaintiff  replies  de 
injuria^  the  j)laintiff  cannot  prove  any  other  assault  than  the 
one  specified  in  the  plea.  In  such  case,  the  plaintiff,  instead 
of  traversing  the  plea,  should  new  assign.^  f  So,  on  the  other 
hand,  if  there  be  two  counts  charging  different  assaults  and 
batteries,  and  the  defendant  in  Ms  plea  justifies  only  one  of 
them,  and  the  plaintiff'  replies  de  injuria^  he  thereby  waives 
the  benefit  of  one  of  the  counts,  and  cannot  prove  an  assault 
and  battery  different  from  the  one  justified.^ 

'  Webster  v.  Watts,  11  Q.  B.  311. 

==  Carpenter  v.  Crane,  5  Blackf.  119.  '  Berry  v.  Borden,  7  Blackf.  384. 

*  Trespass  for  assault  and  imprisonment.  Plea  that  the  plaintiff  was  tres- 
passing on  the  defendants'  close.  Replication  that  the  defendants  had  nothing  in 
the  close,  except  under  R.  N.  C. ;  that  before  the  time  when,  <S:c.,  and  before  the 
defendants  had  anything  in  the  close,  R.  N.  C.  demised  it  from  year  to  year  to 
W.  C. ;  that  W.  C.  permitted  the  plaintiff  to. plant  a  crop  of  teazles  on  condition 
that  W.  C.  should  have  one-half  of  the  crop  and  the  plaintiff  the  other,  and  the 
plaintiff  entered  to  cut  liis  teazles,  when  the  defendant  assaulted  him.  It  was 
held  that  the  replication  was  a  sufBcient  answer  to  the  plea,  though  it  did  not 
allege  that  W.  C.'s  interest  in  the  land  was  continuing  when  the  plaintiff  entered 
to  cut  the  teazles  (Kingsbury  v.  Collins,  4  Bing.  202;  12  Moore,  424).  Where 
the  declaration  alleged  that  the  defendant  assaulted  the  plaintiff  "  while  sitting 
in  his  gig, "  and  the  replication  alleged  that  the  defendant  was  in  his. gig,  and 
that  the  plaintiff  gently  laid  hands  on  him  and  put  him  out,  whereupon  the 
defendant  assaulted  the  plaintiff,  it  was  held  that  this  was  not  a  departure ;  for 
both  allegations,  though  apparently  contradictory,  might  be  true,  as  they  did  not 
necessarily  refer  to  exactly  the  same  point  of  time  (Macfarland  v.  Dean,  1 
Cheves,  64). 

t  In  assault  and  battery  and  imprisonment,  the  defendant  justified  the  whole 
as  master  of  a  ship  in  which  the  plaintiff  was  a  sailor  and  refractory;  and  the 
plaintiff  replied  de  injuria.  It  appearing  that  the  defendant  improperly  knocked 
the  plaintiff  down  in  addition  to  putting  him  in  irons,  it  was  held  that  the  plaint- 
iff could  not  recover,  and  that  if  he  meant  to  admit  that  all  was  proper  except 
the  knocking  down,  and  to  proceed  for  that  only,  he  should  have  new  assigned 
(Gale  v.  Dalrjmple,  1  C.  &  P.  381;  R.  &  M.  118).  In  an  action  for  assault  and 
battery,  the  defendant  pleaded  sou  assault  demesne.  The  plaintiff  replied,  1st,  de 
injuria ;  2d,  excess.  Upon  a  motion  by  the  defendant  that  the  second  replication 
be  set  aside,  the  court  gave  the  plaintiff  leave  to  select  which  replication  he 
would  retain.  The  plaintiff  declining  to  make  the  selection,  the  motion  was 
granted.     Held  that  there  was  no  error  (Reese  v.  Bolton,  6  Blackf.  185.) 


§§  242,  243.  RIGHT    TO  BEGIN.  219 

§  242.  If  it  be  alleged  that  tlie  assault  and  battery  was 
committed  on  a  specified  day,  to  which  the  defendant  pleads 
a  justification,  the  plaintiff  cannot  new  assign  an  assault 
committed  on  another  day.  A  declaration  stated  that  the 
defendant  on  the  1st  of  January  assaulted  the  plaintiff,  and 
then  seized  him  and  dragged  him  about,  and  struck  him 
many  blows,  by  means  whereof  the  plaintiff  was  greatly 
hurt.  The  first  plea  justified  in  defense  of  the  possession  of 
a  close  and  a  gate,  which  the  plaintiff  endeavored  forcibly 
and  with  a  strong  hand  to  break  and  enter.  The  second 
plea  justified  in  defense  of  the  possession  of  a  cow  then  being 
in  a  certain  close,  and  stated  that  the  plaintiff,  against  the 
will  of  the  defendant,  endeavored  to  drive  the  cow  away 
from  the  close,  and  to,  dispossess  the  defendant  of  her,  and 
would  forcibly  have  driven  away  and  dispossessed  the  de- 
fendant of  the  cow,  wherefore  the  defendant  resisted  the 
attempt.  Replication  de  injuria^  and  new  assignment  that 
the  plaintiff'  brought  his  action  not  only  for  the  trespasses 
mentioned  in  the  pleas,  but  for  that  the  defendant,  on  other 
and  different  occasions,  and  with  more  force  than  necessary, 
assaulted  and  beat  the  plaintiff.  It  was  held  on  special  de- 
murrer to  the  replication  and  new  assignment  on  the  ground 
of  duplicity,  that  the  plaintiff  was  confined  to  trespasses  on 
one  occasion,  and  could  not  enlarge  the  declaration  by  the 
new  assignment.^  '^ 

28.  Might  to  hegin. 

§243.  Where  in  an  action  for  assault  and  battery  the 
plea  is  son  assault  demesne^  and  the  replication  de  injuria, 
the  defendant  has  the  right  to  begin.  But,  notwithstanding 
the  defendant  be  permitted  to  commence,  the  plaintiff' may  still 
prove  the  assault  and  battery  charged  in  the  declaration.^  f 

'  Walsby  v.  Oakley,  1  Selw.  N.  P.  38 ;  ante,  §  226. 

"  Young  V.  Highland,  9  Gratt.  16;  ante,  §  92. 

*  Held  also,  that  it  was  not  necessary  that  the  pleas  should  allege  a  request  to 
desist;  and  that  the  second  plea  was  good,  though  it  did  not  show  who  was  the 
owner  of  the  close. 

t  In  England,  the  sixteen  judges  resolved  that  the  plaintiff  should  begin  at 


220  ASSAULT    AND    BATTERY.  §§  244-46. 

20.  Burden  of  proof. 

§  2-44,  AVhen  the  defeudant  ohtains  the  right  to  open  and 
close,  he  thereby  takes  upon  himself  the  burden  of  proof  to 
justify  all  he  did.  Under  the  plea  of  son  assault  demesne, 
with  the  general  replication  de  mguria.,  &c.,  the  burden  of 
proof  is  on  the  defendant,  who  cannot  give  evidence  in  miti- 
gation of  damages,  nor  contradict  the  averments  of  aggra- 
vated injuries  laid  in  the  declaration,  but  is  bound  to  show 
that  the  plaintiff  actually  committed  the  first  assault,  and 
that  Avhat  was  done  on  his  own  part  was  in  the  necessary 
defense  of  his  person.^ 

§  245.  Where  the  ground  of  recovery  is  excess  of  force 
on  the  part  of  the  defendant,  the  burden  of  proof  is  on  the 
plaintiff.  In  an  action  for  assault  and  battery,  the  defendant 
claimed  to  act  in  aid  of  the  U.  S.  marshal,  under  a  warrant 
for  the  arrest  of  the  plaintiff,  who  was  alleged  to  be  a  fugi- 
tive slave.  It  appeared  that  the  plaintiff  was  confined  by 
irons  after  several  acts  of  resistance  and  attempts  to  escape ; 
that  his  clothes  were  somewhat  torn  and  his  person  injured ; 
that  the  injuries  complained  of  were  committed  on  a  recap- 
tion after  one  escape,  and  in  efforts  to  overcome  resistance, 
and  to  prevent  another  escape,  which  the  plaintiff  was  striv- 
ing to  effect.  It  was  held  that  the  burden  of  j^roof  was  on 
the  plaintiff  to  show  that  the  force  was  excessive,  taking  into 
view  all  the  circumstances.^ 

30.  The  proof  must  correspond  ivitli  the  pleadings. 

§  246.  Evidence  on  the  part  of  the  plaintiff  which  sub- 
stantially sustains  the  allegations  in  the  declaration,  will  be 
sufficient.  An  averment  that  A.  struck  B.  will  be  main- 
tained \)j  proof  that  A.  was  present  aiding  others  in  striking 


the  trial  in  all  actions  for  personal  injuries,  although  the  general  issue  were  not 
pleaded  and  the  affirmative  was  on  the  defendant  (Carter  v.  Jones,  6  C.  &P.  64; 
1  M.  &  Rob.  281). 

'  Frederick  v.  Gilbert,  8  Penn.  St.  R.  454. 

^  Loring  V.  Aborn,  4  Cush.  608.     See  Hannen  v.  Edes,  15  Mass.  347. 


§  248.        PROOF   MUST   CORRESPOND  WITH  PLEADINGS.  221 

him.^  In  an  action  by  a  husband  and  wife  for  the  injury  of 
the  latter,  in  which  it  was  charged  that  the  defendants  as- 
saulted and  beat,  wounded  and  terrified  the  wife,  and  for- 
cibly and  unlawfully  turned  her  out  of  her  house,  and  fastened 
her  out,  and  prevented  her  return  thereto,  it  was  held  that 
proof  that  the  defendants,  knowing  that  the  husband  was 
absent,  and  that  the  wife  was  alone  at  home,  and  while  she 
was  out  in  the  garden,  entered  the  house,  fastened  the  doors 
from  within,  and  prevented  her  gaining  an  entrance  by  the 
window,  was  sufficient  to  entitle  the  plaintiffs  to  recover 
without  proof  of  an  actual  assault.^  ^ 

S  247.  Althouo-h  one  of  the  counts  of  the  declaration 
which  omits  the  battery  is  justified,  yet,  if  the  assault  and 
battery  alleged  in  another  count  be  j^roved  as  laid,  the 
plaintiff  will  establish  a  right  to  recover.  Where,  therefore, 
the  first  count  of  a  declaration  stated  that  the  defendant 
assaulted  and  imprisoned  the  plaintiff,  and  during  such  im- 
prisonment struck,  pulled  and  pushed  him  about,  and  the 
defendant  pleaded  that  he  arrested  the  plaintiff  under  pro- 
cess, and  that  the  latter,  whilst  in  custody,  having  conducted 
himself  in  a  violent  manner,  the  defendant,  necessarily,  and 
to  prevent  his  escape,  struck,  <fec.,  it  was  held  that,  although 
the  second  count  of  the  declaration  (which  omitted  the  bat- 
tery) was  justified  by  proof  of  the  writ,  warrant,  and  arrest 
under  them,  the  plaintiff,  notwithstanding  one  assault  and 
battery  only  was  proved,  was  still  entitled  to  judgment  upon 
proving  the  trespasses  as  laid  in  the  first  couut;^ 

§  248.  If  the  declaration  contain  but  one  count,  the 
plaintiff',  after  proving  one  assault,  cannot  w^aive  that,  and 
proceed  to  prove  other  j^rior  or  subsequent  distinct  assaults.^ 


'  Goetz  V.  Ambs,  27  Mo.  28.  '  Jacobs  v.  Hoover,  9  Minn.  204. 

''  Phillips  V.  Ilowgate,  5  B.  &  A.  220. 

^  Stante  v.  Pricket,  1  Camp.  473 ;  Peyton  v.  Rogers,  4  Mo.  254 ;  English  v. 
Purser,  6  East,  S95 ;  Taylor  v.  Smith,  7  Taunt.  156 ;  Bull.  N.  P.  86. 

*  Evidence  that  a  chronic  difficulty  was  aggravated  by  the  assault  and  bat- 
tery, is  admissible  under  a  declaration  charging  that  sickness  and  pain  were 
among  the  suflerings  caused  thereby  (Johnson  v.  McKee,  27  Mich.  471j. 


222  ASSAULT    AND    BATTERY.  §248. 

So,  likewise,  where  tbe  declaration  contains  several  counts, 
embracing  several  assaults,  and  the  defendant  by  his  plea 
narrows  them  all  to  one  assault,  and  justifies  that,  and  the 
phiintiff  takes  issue,  he  is  confined  to  the  assault  set  forth  in 
the  plea.^  "  When,  however,  the  assault  consists  of  a  series 
of  acts  of  violence  following  one  another  so  as  to  constitute 
one  continued  wrongful  act,  the  various  acts  of  violence  may- 
be proved  as  constituting  one  continuing  trespass.^  In  Brown 
V.  Wheeler,^  which  was  an  action  for  assault  and  battery 
against  two  persons,  it  was  claimed  that  after  an  assault  had 
been  committed  by  one  of  the  defendants,  the  other  defend- 
ant came  to  the  house  of  the  plaintifi^  two  hours  afterward 
and  made  another  assault  on  her.  The  defendants  insisted 
that  as  there  was  but  one  count  in  the  declaration,  and  an 
assault  by  one  of  the  defendants  had  been  pros^ed,  no  other 
evidence  could  be  given  of  a  second  assault  by  the  other  de- 
fendant. The  general  principle  was  not  denied.  But  the 
plaintifi:'  claimed,  and  ofl:ered  to  2:)rove,  that  all  the  assaults 
complained  of  took  place  in  one  day,  between  the  hours  of 
six  o'clock  and  ten  o'clock  in  the  morning,  and  that  all  that 
was  done  by  the  defendants  was  in  pursuance  of  a  common 
object  and  design.  The  judge,  therefore,  admitted  the  testi- 
mony, directing  the  jury  that  the  plaintifl:'  could,  under  the 
allegations  in  this  declaration,  prove  but  one  assault,  and 
that  only  which  she  had  first  elected  to  prove,  but  that  if 
they  found  that  these  transactions  were  all  parts  of  a  plan 


•  Gale  V.  Dalrymple,  Ry.  &  M.  118. 

2  Monkton  v.  Aslily,  6  Mod.  38;  2  Salk.  638;  Burgess  v.  Freelove,  2  B.  & 
P.  425. 

=  18  Conn.  199. 

*  The  rale  is  the  same  in  actions  for  false  imprisonment.  Where  a  declara- 
tion for  false  imprisonment  against  A.  and  B.  contained  two  counts,  to  both  of 
which  the  defendants  pleaded  not  guilty,  and  justified  the  first  under  mesne 
process,  A.,  as  the  plaintiff  in  that  action,  and  B.  as  the  bailitf;  and  the 
plaintiff  by  a  new  assignment,  admitting  the  arrest  to  be  hnvful.  replied  that  B., 
with  the  consent  of  A.,  voluntarily  released  him.  and  that  they  afterward  im- 
prisoned him  for  the  time  mentioned  in  the  first  count.  It  was  held,  that  as  the 
plaiutitf  had  failed  in  proving  the  new  assignment,  by  not  showing  the  consent 
of  A.,  it  was  not  competent  for  him  to  prove  the  same  trespass  against  B.  under 
the  other  count  (Atkinson  v.  Matteson,  2  T.  R.  172). 


§  250.        PROOF  MUST  CORRESPOND  WITH  PLEADINGS.  223 

concerted  by  the  defendants  to  get  the  plaintiff  out  of  the 
house,  and  they  conducted  in  the  manner  claimed  by  the 
plaintiff",  then  the  testimony  was  proper.* 

§  249.  The  plea  of  son  assault  demesne^  together  with 
the  plea  of  not  guilty,  puts  the  plaintiff  upon  proof  of  every 
material  allegation  in  the  declaration.^  Where  however, 
to  a  declaration  containing  one  count,  the  ^defendant  pleads 
(1.)  not  guilty,  (2.)  son  assault  demesne^  the  plaintiff'  new 
assigns,  and  the  defendant  pleads  not  guilty  to  the  new 
assignment,  the  plaintiff  is  not  required  to  prove  two  tres- 
passes ;  but  only  a  trespass  differing  from  that  justified,  and 
agreeing  with  that  described  in  the  new  assignment.^ 

§  250.  When  a  series  of  personal  injuries  are  charged, 
and  there  is  an  attempted  justification  of  all  of  them;  in 
order  to  entitle  the  defendant  to  a  verdict,  it  is  incumbent 
upon  him  to  prove  the  material  allegations  of  his  plea  as  to 
all.  Therefore,  where  the  declaration  alleged  an  assault,  put- 
ting the  plaintiff  out  of  a  shop,  and  imprisoning  him  in 
custody  of  a  police  ofiicer,  and  the  plea  was  molliter  manus 
imposuit,  to  remove  the  plaintiff  from  the  defendant's  shop, 
and  a  justification  of  the  imprisonment,  because  the  plaintiff 
had  assaulted  the  defendant,  and  the  assault  on  the  defend- 
ant was  not  proved ;  it  was  held  that  although  without  it, 
the  first  part  of  the  plea  might  be  sustained,  yet  that  being 
a  material  allegation  to  maintain  the  plea  as  to  the  imprison- 


*  Cogdell  V.  Yett,  1  Cold.  Tenn.  230.         ^  West  v.  Rousseau,  7  Blackf.  450. 

*  In  this  case,  the  Supreme  Court  said:  "  Unless  we  are  to  suppose  that  by 
one  assault  is  meant  the  first  blow  ^iven,  and  nothing  more,  we  do  not  see  what 
other  course  could  have  been  taken  tiian  was  taken  upon  the  trial.  If  the  assault 
which  first  took  place  in  the  morning  was  part  of  a  series  of  acts  concerted  by 
these  defendants  to  free  the  house  of  this  woman,  then  eacii  was  accountable  for 
that,  and  all  other  acts  then  done  in  pursuance  of  t?iiat  object.  To  say  they  were 
distinct  assaults  because  a  short  interval  of  time  elapsed  between  the  blows, 
would  be  to  give  to  tlie  rule  an  operation  which  was  never  intended,  and  would 
tend  to  encourage  litigation  by  dividing  up  a  cause  of  action.  It  might  as  well 
have  l)een  objected  that  the  suit  would  not  lie  against  both  defendants,  because 
both  were  not  chero  at  the  same  moment,  as  to  say  that  all  the  acts  which  took 
place  in  this  short  interval  did  not  constitute  one  assault.  Whether  the  injuries 
constituted  one  transaction  was  a  question  which,  under  the  claim  of  the  parties, 
was  a  proper  subject  for  tiie  consideration  of  the  jury." 


224  ASSAULT    AND    BATTERY.  §§  251-53. 

meut,  it  was  necessary  to  prove  it,  to  entitle  tlie  defendant 
to  a  verdict.^ 

§  251.  "Where  tlie  defendant  pleads  a  prior  assault  by 
the  plaintiff",  he  will  not  be  allowed  to  prove  such  prior  assault 
by  the  record  of  conviction  of  the  plaintiff  criminally.^  "  If 
put  in,  it  would  prove  nothing  as  to  the  excess  of  force."  ^ 
But  where  there  was  no  evidence  against  one  of  several 
defendants,  and  it  was  elicited  on  the  cross-examination  of 
one  of  their  witnesses,  that  all  of  them  were  indicted  and 
convicted  for  the  same  assault  and  battery,  it  was  held 
sufficient  to  authorize  a  verdict  against  all.*  Althougb 
matters  in  defense  of  the  action  not  set  up  in  the  plea  cannot 
be  given  in  evidence,^  yet,  notwithstanding  the  defendant 
has  not  pleaded  a  justification,  he  may  extract  evidence  in 
mitigation,  on  the  cross-examination  of  the  plaintiff's  wit- 
nesses.^ * 

31.  Pi'oof  of  time. 

§  252.  Where  one  assault  only  is  charged,  the  plaintiff" 
is  not  bound  to  the  precise  time  stated  in  the  declaration, 
but  may  prove  an  assault  on  another  day ;  ^  and  under  the 
general  issue,  proof  of  an  assault  and  battery,  on  any  day 
before  action  brought,  is  sufficient.® 

32.  Evidence  as  to  possession. 

§  253.  Proof  of  the  lawful  possession  of  the  place  where 
the  alleged  assault  was  committed,  is  often  important.     If 


'  Keece  v.  Taylor,  4  Nev.  &  M.  470 ;  see  Timothy  v.  Simpson,  1  C,  M.  &  R. 
757 ;  6  Car.  &  P.  499. 

^  Robinson  v,  Wilson,  22  Vt.  35.  ^  Ibid,  per  Bennett,  J. 

^  Wolff  V.  Cohen,  8  Rich.  S.  C.  144.  =  Pier  v.  Finch,  29  Barb.  170. 

«  Moore  v.  Adam,  2  Chit.  198. 

'  Cheasley  v.  Barnes,  10  East,  80 ;  Polkinhorn  v.  Wright,  8  Q.  B.  197. 

*  Sellers  v.  Zimmerman,  18  Md.  255;  Palmer  v.  Skillinger,  5  Barring.  234. 
See  ante,  §  73. 

*  In  an  action  against  two,  for  breaking  the  plaintiff's  close  and  beating  his 
slaves,  they  cannot,  under  the  plea  of  not  guilty,  prove  in  mitigation  of  damages, 
a  license  from  the  plaintiff  to  one  of  them  to  visit  his  negro  quarters,  and  whip 
any  of  his  slaves  acting  improperly;  the  battery  being  committed  by  the  other 
defendant,  and  it  not  being  proved  that  the  slaves  beaten  had  acted  improperly 
(Brown  v.  May,  1  Munf.  288). 


§  254.  EVIDENCE  AS  TO  POSSESSION.  225 

the  plaintiff  was  in  the  rightful  and  peaceful  occupation  of 
it,  that  would  give  character  to  the  transaction ;  and  the 
same  may  be  said  with  regard  to  the  defendant.^  In  Collier 
V.  Moulton,^  the  question  arising  out  of  the  bill  of  exceptions 
in  the  court  below  was,  whether  the  testimony  offered  by  the 
defendant  to  show  he  had  a  right  to  enter  and  occupy  the 
room  in  the  house  of  the  plaintiff,  where  the  assault  and  bat- 
tery was  committed,  was  improperly  excluded.  The  de- 
fendant pleaded  the  general  issue,  and  gave  notice  of  son  as- 
sault demesne.  On  the  trial  the  plaintiff'  proved,  that  he 
ordered  the  defendant  out  of  his  house,  and,  on  his  refusing 
to  go,  gently  laid  his  hands  upon  him  to  remove  him,  and 
that  the  defendant  resisted  and  struck  him.  The  defendant 
then  offered  to  prove  that  at  the  time  of  the  occurrence  the 
plaintiff  was  not  in  possession  of  the  room ;  that  it  was  a 
ball-room  that  had  been  hired  by  several  persons  for  a  ball ; 
and  that  the  defendant,  at  their  invitation,  went  there  to  at- 
tend the  ball,  and  continued  there  until  the  plaintiff  at- 
tempted to  turn  him  out.  This  offer  of  the  defendant  being 
overruled,  the  judgment  was  set  aside  on  that  account.* 

§  254.  The  question  sometimes  arises  as  to  what  consti- 
tutes proof  of  possession.  Assault  by  a  master  on  his  serv- 
ant. Justification  of  molliter  mantis  to  remove  him  from 
a  house  of  which  the  master  was  possessed.  Held  that  evi- 
dence that  another  servant  of  the  defendant  had  the  key  to 

'  Brown  v.  Wheeler,  18  Conn.  199.  '  7  Johns.  199. 

*  In  the  above  mentioned  case  the  Supreme  Court  said  :  "  This  evidence 
ought  to  have  been  admitted.  No  possible  objection  could  lie  to  its  being  re- 
ceived in  mitigation  of  damages;  but  it  would  have  been  proper  to  rebut  the 
molliter  manus  set  up  by  the  plaintiff.  The  case  does  not  fall  within  the  rule  in 
actions  of  trespass,  that  a  license  to  enter  cannot  be  given  in  evidence  under  the 
general  issue.  Son  assault  is  a  plea  of  justification,  charging  the  plaintifl"  with 
having  committed  the  first  assault ;  and  proving  that  fact  would  exonerate  the 
defendant  unless  the  resistance  was  carried  further  than  the  necessity  of  the 
case  required.  If  the  defendant  had  pleaded  son  assault  instead  of  giving 
notice  of  it  under  the  general  issue,  and  the  plaintiff  intended  to  avail  himself 
of  the  molliter  manus,  he  must  iiave  replied  specially.  So?i  assault  being  set  up 
by  way  of  notice  under  the  plea,  the  plaintiff  had  no  opjjortunity  of  replying, 
^  and  must  necessarily,  under  such  pleadings,  be  allowed  on  the  trial  to  give  evi- 
dence of  molliter  manus.  And  if  so,  the  defendant  ought  to  be  admitted  to 
meet  and  rebut  this  evidence  by  showing  that  the  plaintiff  had  no  right  to  re- 
move him  from  the  house. 
Vol.  I.— 15 


22G  ASSAULT    AND    BATTERY.  §  255. 

let  himself  in  to  work,  nobody  living  in  the  house,  was  suf- 
ficient proof  of  the  defendant's  possession  to  support  the 
plea.^  But  Avhere  the  defendant  justified  on  the  ground 
that  he  was  possessed  of  a  dwelling-house,  into  which  the 
plaintift"  unlawfully  entered,  and  was  making  a  noise  and 
disturbance  therein,  it  was  held  that  this  plea  was  not  sup- 
ported by  i^roof  that  the  defendant  held  two  rooms  in  the 
house  in  question,  and  that  the  plaintifi^,  who  was  landlord 
of  the  house,  and  kept  the  key  of  the  outer  door,  had  un- 
lawfully come  into  them,  and  made  the  disturbance  com- 
plained of.^  By  agreement  between  A.,  the  owner  of  a  close, 
and  the  members  of  a  committee  of  a  cricket  club,  A.  agreed 
to  let  to  the  committee,  and  the  committee  to  hire  the  close, 
to  be  used  as  a  cricket  ground  by  the  club,  and  for  that 
purpose  only.  The  plaintiif  and  defendant  were  members 
of  the  committee.  The  plaintifl'  having  sued  the  defendant 
for  an  assault  in  removing  the  j^laintift"  from  the  close,  the 
defendant  pleaded  possession  of  the  close  in  himself,  and 
justified  the  removal.  The  j^laintift"  replied  that  he  and  the 
defendant  were  jointly  possessed.  It  was  held  that  the  facts 
supported  this  replication.'^  ^"■ 

§  255.  Possession  may  be  inferred  from  cii'cum stances. 
In  an  action  for  assault  and  battery  occurring  in  a  dispute 
as  to  which  party  was  entitled  to  the  possession  of  certain 
land,  the  judge  at  the  circuit  excluded  evidence  ofi*ered  to 
show  who  planted,  fenced  and  occupied  the  lot  in  question 
for  two  years  immediately  previous  to  the  assault,  and  a  ver- 
dict having  been  found  for  the  plaintift^,  a  new  trial  was 
granted  on  this  ground.  The  court  remarked  that  it  be- 
longed to  that  class  of  facts,  of  which  there  are  many  in  the 
law,  seemingly  involving,  to  some  extent,  the  expression  of 
an  opinion,  or  a  conclusion  from  other  particular  facts,  as  to 

'  Hall  V.  Davis,  2  Car.  &  P.  33.  -  Monks  v.  Dykes,  4  Mees.  &  W.  567. 

=  Holmes  v.  Bagge,  1  El.  &  B.  782;  22  L.  J.  N.  S.  Q.  B.  301. 

*  It  is  no  excuse  that  the  defendant  owned  the  house  in  which  the  assault 
and  batteiT  was  committed,  the  house  being  at  the  time  in  the  possession  of  a 
third  person  (Suggs  v.  Anderson,  12  Geo.  R.  461). 


§§  256,  257.  EVIDENCE  AvS  TO  POSSESSION.  227 

wliicli  from  the  necessity  of  the  case  the  law   tolerates   a 
direct  and  comprehensive  inquiry.^ 

§  256.  A  judgment  determining  the  question  of  posses- 
sion between  the  same  parties  in  another  matter,  in  re- 
lation to  the  same  transaction,  would  be  conclusive.  Where, 
therefore,  in  an  action  by  B.  against  A.  for  an  assault  and 
battery,  it  appeared  that  the  act  complained  of  occurred 
while  A.  was  defending  his  premises  against  the  forcible  en- 
try and  detainer  of  B.,  and  was  a  part  of  that  transaction ; 
it  was  held  that  a  judgment  in  favor  of  A.,  on  the  complaint 
of  forcible  entry  and  detainer  against  B.,  was  admissible,  un- 
der the  general  issue  with  notice,  to  prove  that  A.  was  in 
lawful  possession  of  the  land  at  the  time  of  the  assault,  and 
to  disprove  the  possession  claimed  by  B.,  and  that  upon  this 
point,  the  judgment  was  conclusive.^ 

§  257.  Force  and  fraud  may  be  a  proper  subject  for 
consideration  on  the  hearing  of  a  habeas  corpus  relative  to 
the  possession  of  a  child,  where  the  question  is  one  of  dis- 
cretion, and  where  the  further  question  is  whether  the  father 
is  the  proper  person  to  have  the  care  of  it.  But  in  an  action 
at  law  turning  on  the  strict  legal  rights  of  the  parties,  the 
manner  in  which  the  possession  was  obtained  is  not  material 
unless  upon  a  question  of  damages;  for  it  can  affect  no 
rights.  Where,  therefore,  in  an  action  for  an  assault  and 
battery,  it  appeared  that  the  plaintiff,  the  father  of  a  legit- 
imate child,  was  in  the  quiet  custody  of  the  child  when  as- 
saulted by  the  defendant  for  the  purpose  of  taking  it  away 
from  him,  it  was  held  that  if  the  possession  of  the  father, 
when  obtained,  was  lawful  and  exclusive,  the  fact  that  the 
father  had  regained  the  possession  by  strategem,  was  wholly 
immaterial.'^ 


'  Ilardcnhurgh  v.  Crary,  50  Barb.  83;  Parsons  v.  Brown,  15  Barb.  590:  Burt 
V.  Powis,  10  How.  Pr.  R.  289. 

'  Bell  V.  Raymond,  18  Conn.  91. 
^  Johnson  v.  Terry,  34  Conn.  259. 


228  ASSAULT    AND    BATTERY.  |  258- 

33.  Proof  of  malice. 

§  258.  Ill  feeling  or  animosity  on  the  part  of  the  person 
charged,  toward  the  one  assaulted,  may  be  proper  evidence. 
When  an  assault  is  proved  to  have  been  committed  by  some 
one,  and  the  person  charged  is  shown  to  have  had  an  oppor- 
tunity to  commit  it,  it  can  scarcely  be  regarded  as  an  imma- 
terial circumstance  for  the  consideration  of  the  juiy,  with  the 
view  of  connecting  him  with  the  act,  that  he  was  maliciously 
disposed  toward  the  person  assaulted.  The  existence  of  ill 
feeling  of  itself  proves  nothing ;  but  it  is  a  circumstance  in 
connection  w^th  others  that  the  jury  may  rightly  consider  in 
inferring  the  alleged  fact.^  In  an  action  for  assault  and  bat- 
tery, it  appeared  that  the  plaintiff  was  injured  whilst  the 
defendant  was  alone  with  her.  The  circumstances  proved  war- 
ranted the  inference  that  the  defendant  seized  and  wrenched 
her  arm.  But  he  w^as  her  brother,  and  it  was  neither  impos- 
sible, nor  very  improbable,  that  the  injury  was  accidental  or 
unintentional.  Such  an  hypothesis  would  sooner  be  indulged 
than  that  a  brother,  without  any  ill-will  toward  her,  had 
intentionally  inflicted  violence  on  her  person.  But  by  adding 
to  the  circumstances  the  fact  that  there  existed  ill  feeling  on 
the  part  of  the  defendant  toward  the  plaintiff,  the  case  as- 
sumed a  different  aspect.  Whereas,  before,  the  juiy  might 
have  been  bewildered  by  the  absence  of  a  motive  to  do  an 
intentional  wrong,  now  it  wa3  made  to  appear.  The  ill-will 
did  not  tend  to  prove  the  act  of  seizure  of  the  arm,  but  it 
aided  to  determine  its  character  and  legal  effect.^  * 


'  Jewett  V.  Banning,  31  K  Y.  27;  Klein  v.  Thompson,  19  Ohio  St.  R.  569; 
Aulger  V.  Smith,  34  111.  534. 

'  Jewett  V.  Banning,  sujjra. 

*  Proof  of  violence  by  a  third  person  is  admissible  when  it  appears  that  such 
person  was  co-operating  with  the  defendant.  Millen  v.  Sweitzer,  22  Mich. 
391.  In  an  action  for  assanlt  and  battery  the  plaintiffs  daughter  testified  that 
§he  was  standing  a  little  east  and  back  of  the  plaintifl''s  house,  some  twenty-five 
or  thirty  rods  from  where  the  afi'ray  took  place,  and  that  she  started  and  ran 
through  the  house  toward  the  other  door.  She  was  asked  by  the  plaintiff's 
counsel  what  made  her  go  into  the  house,  and  if  there  was  anything  in  the 
appearance  or  conduct  of  the  defendant  which  caused  her  to  do  so.  It  was  held 
that  the  question  was  irrelevant  (McConaghy  v.  McMuUen,  27  Wis.  73). 


§  259.  PROOF    OF  MALICE.  229 

§  259.  Words  employed  by  the  defendant  at  the  time  of 
the  assault  and  battery  are  admissible  as  part  of  the  res 
gestcB  and  to  characterize  his  conduct  as  to  malice ;  ^  as  that 
he  charged  the  23laintiflf  with  having  sworn  falsely.^  Where 
the  defendant  undertakes  to  show  that  he  committed  the 
assault  ^vdthout  malice,  the  plaintiff  may  prove  that  the 
defendant  has  offered  to  light  him  since  the  commencement 
of  the  action.^  And  what  occurred  before  or  after  the  princi- 
pal transaction  may  be  given  in  evidence  to  show  a  malignant 
and  cruel  disposition  toward  the  plaintiff."^  In  Devine  v. 
Rand,^  the  plaintiff'  charged  the  defendant  with  beating, 
kicking,  and  in  other  ways '  abusing  her.  To  some  of  the 
counts  of  the  declaration  the  defendant  pleaded  the  general 
issue,  and  to  others  in  justification,  that  the  force  he  used 
was  but  reasonable  chastisement  of  the  plaintiff'  for  her  mis- 
behavior, and  was  administered  for  that  purpose,  she  being  a 
«hild  between  eleven  and  twelve  years  old,  whom  he  had 
received  from  her  parents  to  bring  up.  Several  distinct  suc- 
cessive acts  upon  different  occasions  were  complained  of,  and 
at  the  trial  of  the  cause  in  the  county  court,  the  plaintiff'  was 
allowed  to  prove  acts  and  words  of  the  defendant  about  the 
time  of,  and  between  the  principal  transactions,  as  follows : — 
That  between  the  principal  acts  of  abuse  and  shortly  after 
some  of  them,  the  defendant  held  the  child  to  a  mirror  and 
called  her  attention  to  her  sunken  eyes  and  emaciated  con- 
dition, and  reminded  her  that  he  would  soon  see  her  stretched 
on  a  board  ;  that  he  besmeared  her  with  excrement,  compelled 
her  to  drink  urine,  chained  her  to  the  stove,  and  left  her  in 
that  condition  for  hours  alone,  dressed  her  in  men's  clothes, 
and  then  pinched,  tortured  and  insulted  her ;  and  that  the 
defendant,  after  putting  the  plaintiff  naked  through  the  ice 
into  a  trough  of  water,  conducted  her  to  the  house,  and  before 


'  McDougall  V.  Maguire,  35  Cal.  274;  Blake  v.  Damon,  103  Mass.   199;  ante 
3,  145. 

""  Pulver  V.  Harris,  61  Barb.  78.  ="  Mills  v.  Carpenter,  10  Ired.  298. 

*  Pierce  v.  Hoffman,  24  Vt.  527 ;  Long  v.  Chubb,  5  C.  &  P.  55. 
'  38  Vt.  621. 


230  ASSAULT  AND  BATTERY.  §  260. 

allowing  lier  to  dress  placed  her  over  a  stove,  and  as  she 
trembled,  whipped  her  and  compelled  her  to  stand  there  till 
she  fell.  It  was  held  that  the  foregoing  was  admissible,  as 
calculated  to  show  that  the  defendant's  intention  and  disposi- 
tion in  the  principal  acts  Avere  wilfully  malignant,  and  that 
the  principal  acts  were  prompted  by  a  settled  and  persistent 
purpose  of  oppression  and  wanton  cruelty.  The  court  re- 
marked that  although  what  occurred  after  the  plaintiff  re- 
turned to  the  house  was  not  alleged  in  the  declaration,  yet 
as  it  took  place  in  connection  wdth  the  immersion,  and  very 
probably  in  consequence  of  it,  and  before  the  defendant  left 
her  or  allowed  her  to  dress,  it  must  be  regarded  as  one 
transaction,  and  might  be  proved.  * 

34.  Admissions  and  declarations. 

§  260.  Declarations  of  the  plaintiff  at  the  time  of  the 
assault,  or  shortly  after,  as  to  the  extent  of  his  injuries, — as 
what  he  said  in  relation  thereto  to  the  attending  surgeon, — 
are  admissible  as  a  part  of  the  res  gestoe  /  ^  f  and  the  plaintiff 


'  Green  v.  Bedell,  48  N.  Hamp.  546 ;  Fort  v.  Brown,  46  Barb.  366 ;  Caldwell 
V.  Murpliy,  11  N.  Y.  416;  Brown  v.  N.  Y.  Centr.  R.  R.  Co.  32  lb.  597;  1  Greenl. 
Ev.  §  102. 

*  In  an  action  for  assault  and  battery,  it  appeared  that  the  defendant,  with 
others,  used  threatening  and  violent  language  toward  the  plaintiff;  that  the 
plaintiff  soon  after  left  the  State,  and  that  while  away  his  house  and  outhouses 
were' destroyed.  It  was  held  that  the  court  erred  in  admitting  evidence  as  to  the 
plaintiff's  absence  from  the  State  and  the  subsequent  destruction  of  the  property, 
unless  shown  to  have  been  part  of  the  original  trespass  and  that  the  defendant 
was  present  aiding  and  abetting  therein  (Williams  v.  Gaines,  3  Cold.  Tenn.  R. 
240).  On  a  trial  for  an  assault  and  battery,  it  is  not  proper  for  the  plaintiff  to 
ask  a  witness  if,  in  his  opinion,  the  fight  would  have  taken  place  if  the  defendant 
had  informed  the  plaintiff  that  he  had  a  knife  (Reese  v.  Bolton,  6  Blackf.  185). 
Upon  the  question  of  excessive  punishment  of  a  pupil  by  the  master,  proof  of 
the  general  mild  and  moderate  management  of  the  master  is  not  admissible. 
But  when  the  proof  tends  to  show  that  the  master  acted  maliciously  or  wantonly 
from  an  evil  heart,  and  the  plaintiff  claims  to  recover  damages  on  that  ground, 
such  evidence  is  proper.  It  should,  however,  be  sti'ictly  limited  to  that  pur- 
pose. Upon  the  question  of  malice  in  whipping  his  pupil  with  a  rawhide,  in 
order  to  show  that  he  did  not  resort  to  an  unusual  instrument  of  punishment,  it 
may  be  proved  that  a  rawhide  was  used  in  other  schools  in  the  vicinity.  Testi- 
mony to  show  that  the  plaintiff  did  not  claim  an  excess  of  punishment  on  the 
first  trial  is  proper,  as  tending  to  prove  that  such  a  claim  on  the  then  pending 
trial  is  not  well  founded  (Lander  v.  Seaver,  32  Vt.  114). 

t  The  ground  of  the  admissibility  of  the  evidence  was  stated  by  Welles,  J., 
in  Fort  v.  Brown,  supra,  thus:   "The  witness  did  not  know  or  profess  to  know 


§  2G1.  ADMISSIONS   AND  DECLARATIONS.  231 

may  prove  that  he  complained  of  the  injury  soon  after  it  was 
received,  and  continuously  afterward.^  In  an  action  for  as- 
sault and  battery  committed  on  a  boy  of  fourteen,  by  kick- 
ing him,  it  was  proved  that  the  immediate  effect  of  the  violence 
was  to  produce  a  pain  in  the  plaintiff's  side;  that  soon  after 
he  was  kicked  by  the  defendant  he  came  from  the  barn 
where  he  received  the  injury  to  the  defendant's  house,  and 
as  he  went  walked  lame,  and  held  his  side,  and  upon  being 
asked  what  was  the  matter,  answered  that  the  pain  was  in  his 
side ;  that  soon  after,  the  plaintiff  left  the  defendant's  house 
to  go  to  his  father's,  and  as  he  walked  away,  held  his  side 
and  talked  as  if  he  were  crying ;  that  on  his  way  home  he 
passed  the  house  of  a  witness,  and  was  crying  and  holding 
his  right  side ;  that  the  next  day  he  went  to  one  C's  to 
work,  and  remained  there  two  months,  and  while  there  slept 
with  one  G. ;  that  during  the  entire  two  months  the  plaintiff 
in  the  night  time  complained  of  his  right  side,  and  said  that 
he  lay  on  his  left  side  because  it  hurt  him  to  lie  on  his  right 
side.  It  was  held  that  this  testimony  was  properly  admit- 
ted.^ But  in  an  action  for  injuries  inflicted  on  the  |)laint- 
iff's  wife,  which  caused  her  death,  it  was  held  that  a  state- 
ment made  to  the  plaintiff  by  his  wife  the  next  day  after 
the  assault,  was  not  admissible  as  part  of  the  res  gestce, 
though  it  might  have  been  if  made  immediately  after  the 
occurrence.^ 

§  261.  The  declaration  of  a  party  prior  to  the  commis- 
sion of  a  wrong,  that  he  intends  to  perpetrate  it,  is  evidence 


in  what  manner  or  by  what  means  the  injury  happened  to  the  plaintiff,  and 
therefore  had  to  rely  principally  upon  her  statements  on  that  subject.  It  was 
for  the  jury  to  say  whether  those  statements  were  true,  and  if  they  should  believe 
them  the  testimony  of  the  physician  as  to  the  efl'ect  would  be  applicable.  If  they 
did  not  believe  them,  they  would  dismiss  his  evidence  from  their  considera- 
tion. It  was  not  to  prove  the  facts  in  relation  to  the  assault  and  battery  that 
the  doctor  was  examined ;  and  none  of  the  questions  put  to  him,  nor  his  answers 
thereto,  appear  to  have  had  any  such  object  or  tendency." 

'  Yost  v.  Ditch,  5  Blackf.  184;  Johnson  v.  McKee,  27  Mich.  471. 

'  Weekly  v.  Persons,  28  N.  Y.  344;  and  see  Aveson  v.  Kinnaird,  6  East,  188; 
Gray  v.  Young,  Harper,  38;  Caldwell  v.  Murphy,  1  Kern.  416, 

'  Spartz  V.  Lyons,  55  Barb.  476,  Brady,  J.,  dissenting ;  see  Goodwin  v.  Harri- 
son, 1  Root,  80. 


232        ,  ASSAULT    AND    BATTEKY.  §  261. 

against  Lim,  because  it  is  presumed  that  the  feelings  and 
purposes  which  such  declaration  indicates  do  in  fact  exist, 
and  impel  such  utterance,  and  because  a  state  of  feeling 
once  proved  to  exist  is  presumed  to  continue  until  some 
change  is  shown.  The  length  of  time  that  may  have  elapsed 
between  the  declaration  of  the  purpose  and  its  consumma- 
tion, as  well  as  all  the  circumstances  attending  such  declara- 
tion, are  to  be  taken  into  consideration  in  determining  its 
weight  and  importance ;  and  the  intervening  time  may  be  so 
great,  or  the  other  circumstances  of  such  a  character,  as  to 
render  the  declaration  of  little  value.  But,  upon  princij)le, 
the  declaration  of  an  intention  to  commit  the  act  in  question 
can  never  be  rejected  as  irrelevant  when  the  issue  is  whether 
the  party  making  such  declaration  did  the  act.^  * 


'  Bartram  v.  Stone,  31  Conn.  159. 

*  In  an  action  for  assault  and  battery,  the  following  instruction  was  held  un- 
objectionable: that  "if  the  defendant  threatened  to  whip  the  plaintiff  out  of  the 
county,  and  the  plaintiff  was  afterward  whipped,  it  would,  in  the  absence  of 
exculpatory  evidence,  be  a  strong  presumption  against  the  defendant;  but  if  he 
had  only  expressed  the  opinion  that  the  plaintiff  ought  to  be  w'hipped  out  of  the 
county,  it  would  not  be  so  strong  a  circumstance  "  (Grisby  v.  Moffat,  2  Humph. 
487).  In  an  action  of  assault  and  battery,  which  was  tried  upon  the  general 
issue,  the  plaintiff  offered,  and  the  court  received,  evidence  to  prove  that  previous 
to  the  trespass  complained  of  the  defendant  had  threatened  the  assault.  These 
threats  were  not  made  in  the  plaiutifl"s  presence,  and  there  was  no  proof  that  he 
had  been  informed  of  them  when  the  assault  was  made.  The  defendant  objected 
to  the  evidence,  because  the  threats  being  made  before  the  trespass,  and  not  in 
the  presence  of  the  plaintiff,  were  no  part  of  the  transaction  for  which  the  suit 
was  brought.  The  ruling  of  the  judge,  before  whom  the  cause  was  tried,  was, 
however,  affirmed  by  the  Supreme  Court,  which  said:  -'Evidence  of  threats  is 
not  objectionable  because  the  threats  were  uttered  before  the  commission  of  the 
threatened  act.  No  action  can  be  maintained  for  their  utterance  alone.  Nor 
should  damages  be  increased  either  because  they  were  uttered,  or  because  the 
party  then  entertained  the  malicious  motive  which  inspired  them.  Evidence  of 
their  utterance  is  admissible  only  because  it  conduces  to  prove  a  fact — that  the 
malicions  motive  tlien  existed ;  and  from  that  fact  the  inference  may  be  deduced 
that  the  same  malicious  motive  continued  to  exist  until  the  threatened  deed  was 
perpetrated.  Tliis  evidence  then  was  properly  received,  because  it  conduced  to 
prove  a  fact  from  which  a  legitimate  inference  was  fairly  deducible,  that  the  de- 
fendant committed  the  assault,  and  that  it  was  jjremeditated  and  malicious.  It 
is  contended  that  the  evidence  was  inadmissible  because  the  threats  were  no  part 
of  the  transaction  on  account  of  which  tiie  suit  was  instituted.  But  the  malice 
which  their  utterance  indicated  was  part  of  the  transaction ;  it  characterized  the 
attack,  and  impelled  the  blows;  and  the  existence  of  that  malice  was  one  of  the 
facts  which  the  evidence  was  received  to  prove.  And  if  the  defendant,  in  miti- 
gation, may  show  that  the  act  proceeded  from  a  sudden  heat,  induced  by  tlie 
plaintiff's  provocations,  why  may  not  the  plaintiff,  in  aggravation,  show  that  it 
proceeded  from  long  cherished  and  premeditated  malice?  The  fact  that  the 
threats  proved  never  came  to  the  plaintiff's  knowledge  before  the  assault,  is  of 


§§  262,  263.       ADMISSIONS  and  declarations.  233 

§  262.  The  declarations  or  admissions  of  the  party  which 
accompany  the  act,  as  well  as  his  subsequent  admissions  or 
declarations,  may  be  proved.^  And  the  record  of  an  indict- 
ment for  the  same  offense  to  which  the  defendant  pleaded 
guilty,  may  be  given  in  evidence.^  The  silence  of  the  de- 
fendant when  charged  with  the  commission  of  the  assault  at 
the  time  of  its  alleged  occurrence,  may  be  tantamount  to  an 
admission  of  it  by  him.  In  an  action  for  an  assault  upon  the 
person  of  a  Mrs.  Stratton,  the  follow^ing  evidence  offered  by 
the  plaintiff,  was  held  admissiljle : — That  just  at  the  com- 
mencement of  the  evening  the  defendant  entered,  uninvited, 
into  the  bed-room  of  Mrs.  Stratton  where  she  was  tending 
her  child ;  that  under  pretence  that  he  wanted  a  newspaper, 
he  induced  her  daughter  to  leave  the  room  and  go  below  for 
a  light ;  that  soon  after  Mrs.  Stratton  exclaimed  "  let  go  of 
me  " — "  keep  your  hands  off'  of  me," — "  keep  your  distance," 
to  which  the  defendant  made  no  reply,  but  as  the  daughter 
was  just  then  coming  in  with  a  light,  he  left  the  house.'^  * 

§  263.  If  a  j)arty  in  a  given  interview  and  conversation, 

no  importance.  The  issue  upon  trial  involved  the  consideration  of  the  defend- 
ant's state  of  mind  at  the  time  of  the  assault.  But  his  state  of  mind  anterior  to 
that  time  might  be  proved  as  a  fact,  because  from  that  fact  the  jury  would  be 
authorized  to  infer  what  it  was  when  the  assault  was  made.  The  plaintiff's 
ignorance  of  that  fact,  and  of  the  threats  by  which  the  existence  of  that  fact  was 
indicated,  was  therefore  unimportant,  because  it  could  have  no  effect  either  upon 
the  reality  of  the  existence  of  the  fact  itself,  or  upon  the  legitimacy  and  force  of 
the  inference  which  such  fact  authorized  "  (Bartram  v.  Stone,  mpra ;  and  see  St. 
Peter's  Church  v.  Beach,  26  Conn.  355;  Dibble  v.  Morris,  B).  416). 

'  Sherley  v.  Billings,  8  Bush,  Ky.  147. 

=  Corwin  v.  Walton,  18  Mo.  71;  Green  v.  Bedell,  48  N.  Hamp.  546. 

^  Stratton  v.  Nichols,  30  Conn.  327. 

*In  an  action  for  an  assault  and  battery,  the  hand  of  the  plaintiff  was  shown  to 
the  jury  without  objection,  in  connection  with  testimony  tending  to  prove  that 
it  had  been  injured  in  the  affray.  Testimony  was  afterward  introduced  by  the 
defendant  to  prove  that  the  wound  in  the  hand  had  existed  years  before.  It  was 
held  that  instruction  to  the  jury,  that  if  tiiey  believed  that  the  plaintiff  attempted 
to  deceive  them  in  this  particular,  they  plight  take  it  into  consideration  in  con- 
nection with  the  other  conflicting  testimony  in  the  case,  did  not  declare  any  legal 
rule  controlling  the  judgment  of  the  jury,  and  was,  therefore,  not  objectionable. 
The  court  remarked  that  the  jury  were  left  free  to  allow  it  to  have  such  an  in- 
fluence as  they  should  think  reasonable  and  just;  that  it  was  rather  a  commen- 
tary on  the  testimony  called  forth  by  the  position  in  which  the  plaintiff  had 
chosen  to  place  himself,  than  a  statement  of  any  rule  or  presumption  of  law; 
and  that  it  was  much  less  severe  than  the  rule  which  the  law  applied  to  the 
testimony  of  a  witness  thus  situated  (Millay  v.  Millay,  18  Maiue,  387). 


234  ASSAULT    AND    BATTERY.  §  263. 

is  repeatedly  charged  with  the  commission  of  assault  and 
battery,  and  he  denies  it  unequivocally  once,  he  is  not  called 
upon  to  repeat  the  denial  in  order  to  avoid  the  inference  of 
an  admission  of  its  truth  against  him.  But  if  the  charge  be 
made  at  distinct  times,  under  different  circumstances,  and  in 
the  presence  of  different  persons,  though  he  may  have  de- 
nied it  at  one  time,  his  silence  under  accusation  at  another 
time,  and  under  other  circumstances,  is  a  proper  circumstance 
to  be  weighed  by  the  jury.  At  least,  the  court  is  not  called 
upon  to  instruct  the  jury,  as  matter  of  law,  that  they  are  to 
infer  nothing  against  him  from  his  silence.  In  an  action  for 
an  assault  and  battery,  it  appeared  that  the  plaintiff's  arm 
was  considerably  injured,  which  she  claimed  was  done  by  the 
defendant  violently  seizing  and  wrenching  it.  There  was  no 
direct  evidence  that  the  injury  was  occasioned  by  the  de- 
fendant. A  witness  for  the  plaintiff  testified  among  other 
things,  that  shortly  after  the  plaintiff's  arm  was  injured  he 
heard  her  charge  the  defendant  with  having  injured  her  arm, 
which  accusation  was  in  the  presence  of  the  defendant  and 
several  others ;  but  the  witness  did  not  hear  the  defendant 
make  any  reply.  Another  of  the  plaintiffs  witnesses,  who 
was  present  on  the  occasion  referred  to,  did  not  hear  the  de- 
fendant deny  the  charge.  The  defendant  introduced  evi- 
dence tending  to  show  that  about  an  hour  previous,  on  the 
same  day,  and  when  the  plaintiff's  witnesses  were  not  present, 
the  plaintiff  made  substantially  the  same  charge,  which  the 
defendant  denied.  The  judge,  among  other  things,  instructed 
the  jur}^,  that  if  the  plaintiff  accused  the  defendant  of  com- 
mitting the  assault,  and  he  at  the  same  time  denied  it,  it 
furnished  no  evidence  against  him ;  but  if  he  remained  silent 
when  so  charged,  they  might  regard  it  as  an  admission  that 
he  was  guilty,  or  give  it  such  weight  as  they  thought  it  en- 
titled to ;  that  there  was  some  doubt  from  the  evidence  per- 
haps, whether  the  accusation  after  it  had  been  once  made  was 
repeated,  and  if  it  was  repeated,  whether  the  defendant  then 
remained  silent ;  that  the  jury  would  not  probably  conclude 
that  the  defendant  after  he  had  once  emphatically  denied  the 


§§  264,  265.  EVIDENCE    OF    PROVOCATION.  235 

accusation  on  tliat  occasion  was  called  upon  to  deny  it  again 
if  the  accusation  was  repeated,  but  that  they  would  give  such 
weight  to  the  defendant's  silence  when  the  charge  was  re- 
peated, if  it  was  repeated,  as  they  thought  it  entitled  to,  un- 
der the  rules  which  had  been  stated  as  to  the  effect  of  re- 
maining silent.  It-  was  held  that  there  was  no  error  in  the 
instruction ;  and  a  verdict  having  been  found  for  the  plaintiff, 
an  order  of  the  special  term  granting  a  new  trial,  was  re- 
versed.^ 

§  264.  Declarations  of  the  plaintiff  respecting  the  defend- 
ant, are  not  admissible  in  mitigation  of  damages,  unless  they 
are  proved  to  have  been  communicated  to  the  defendant.^ 
And  where  a  considerable  interval — e.  g.,  two  months, — has 
elapsed  between  the  making  of  the  declarations  and  the  as- 
sault, they  will  not  be  admissible  unless  proved  to  have  been 
communicated  to  the  defendant  immediately  before  the  as- 
sault.^ Nor  can  the  defendant  after  proving  the  plaintiff's 
declarations  made  immediately  after  the  affair  as  to  its  origin, 
prove  his  own  statements  in  reply .^ 


4  * 


35.  Mvidence  of  provocation. 

§  265.  A  blow  will  be  justified  by  an  assault  unless  the 
battery  is  excessive.^     Where  the  defendant  proved  that  the 

'  Jewett  V.  Banning,  33  Barb.  13;  s.  c.  21  N.  Y.  37. 

""  Chambers  v.  Porter,  5  Cold.  Tenn.  373. 

=  Gaither  v.  Blowers,  11  Md.  536.  '  Collins  v.  Todd,  17  Mo.  537. 

*  Hazel  V.  Clark,  3  Harring.  33. 

*  Acts  and  declarations  of  the  plaintiff,  several  months  previous  to  the  assault, 
are  not  evidence  of  an  intent  to  commit  -wanton  violence  at  the  time  of  the  as- 
sault (Castner  v.  Sliker,  4  Vroom,  95). 

In  an  action  for  an  indecent  assault,  the  plaintiff  cannot  prove  her  own  acts 
at  a  period  of  time  subsequent  to,  and  somewhat  remote  from  the  time  of  the 
alleged  injury,  as  evidence  of  mental  suffering  (Ford  v.  Jones,  63  Barb.  484). 

Where  it  is  proved  that  the  defendant  prevented  the  interference  of  a  third 
person,  evidence  of  the  simultaneous  declarations  of  such  third  person,  tending 
to  show  that  he  was  about  to  participate  in  the  fio-ht,  is  admissible  in  mitigation 
of  damages  (Watkins  v.  Gaston.  17  Ala.  664).  The  defendant  was  allowed  to 
prove  the  contents  of  a  letter  which  he  had  written  to  the  plaintiff  notifying  him 
that  he  should  carry  weapons  for  his  defense,  the  letter  itself  having  been  de- 
stroyed. It  was  held  that,  if  the  evidence  was  admitted  to  show  that  the  de- 
fendant had  forewarned  the  plaintiff  that  he  should  arm  himself,  it  was  proper 
(McMasters  v.  Cohen,  5  Ind.  174). 


236  ASSAULT    AND    BATTERY.  §  266. 

plaintiff  got  off'  of  bis  horse,  lield  up  a  stick,  and  offered  to 
strike  the  defendant,,  and  the  latter  thereupon  gave  him  a 
beating,  it  was  held  that  a  moderate  battery  was,  by  reason 
of  the  23ro vocation,  justilial)le.  and  that  if  the  plaintiff  relied 
upon  the  fact  of  the  defendant  having  beaten  him  more 
violently  than  he  ought  to  have  done,  the  excessive  beating 
should  have  been  replied  and  specially  set  forth.^  But  in 
order  to  sustain  a  justification  on  the  ground  of  misconduct 
of  the  plaintiff  which  does  not  amount  to  an  assault,  the 
defendant  must  prove  that  he  was  free  from  fault,^ 

§  2C)().  Although  words  sj^oken  will  not  justify  a  blow, 
yet  they  may  go  in  mitigation  of  damages  when  they  imme- 
diately preceded  the  battery  and  naturally  provoked  it.^ 
When  a  battery  has  been  committed  under  highly  provoking 
language,  the  law  will  not  imply  such  malice  as  requires 
punishment  with  vindictive  damages,  unless  the  wrong  be 
carried  to  an  excess  beyond  what  a  reasonable  man  would 
do  under  such  circumstances.  But  the  question  of  damages, 
in  such  case  is  with  the  jury.^  *     A.  having  written  a  novel, 


'  Dale  V.  Wood,  7  Moore,  33 ;  Penn  v.  Ward,  2  C.  M.  &  R.  388. 

=  Phillips  V.  Kelly,  29  Ala.  628. 

=  Ireland  v.  Elliott,  5  Clarke  Iowa  R.  478 ;  Cushraan  v.  Ryan,  1  Story  R.  91 ; 
Stephen  v.  Myers,  4  C.  &  P.  349 ;  Shorter  v.  The  People,  2  Comst.  193 ;  Keyes 
V.  Devlin,  3  E.  D.  Smith,  518;  Thompson  v.  Mumma,  21  Iowa,  65;  Murray  v. 
Boyne,  42  Mo.  472. 

^  Donnelly  v.  Harris,  41  111.  126 ;  Bartram  v.  Stone,  31  Conn.  159. 

*  In  Bartram  v.  Stone,  svpra^  the  plaintiff  having  proved  threats  made  by  the 
defendant  prior  to  the  assault,  the  defendant  offered  to  prove  that,  just  before 
the  assault,  the  plaintiff"  charged  him  (in  substance)  with  a  theft,  and  his  answer 
to  the  charge.  It  was  held  that  this  evidence  was  proper.  The  plaintiff  then 
offered  to  prove  the  truth  of  the  charge  thus  made  by  him,  but  it  was  ruled  out. 
Finally,  an  offer  by  the  defendant  to  prove  his  innocence  of  the  charge  was 
rejected.  "The  offer  came  with  an  ill  grace  from  the  defendant,  who  had  just 
procured  the  rejection  of  evidence  to  prove  his  guilt.  And  it  was  of  no  import- 
ance to  the  issue  before  the  court  whether  the  charge  was  true  or  false.  The 
defendant's  evidence  that  the  charge  was  made  was  admissible,  and  was  ad- 
mitted only  to  show  the  provocation  which  he  claimed,  and  to  rebut  the  plaintiff's 
claim  that  he  was  actuated  by  premeditated  malice  rather  than  by  sudden  impulse 
and  excitement.  And  besides,  the  charge  was  presumed  to  be  false,  and,  there- 
fore, it  needed  no  refutation."  In  Tennessee,  insolence  of  a  slave  was  held  no 
defense  to  an  action  brought  by  the  owner  against  a  white  man  for  assault  and 
battery  of  his  slave,  even  though  it  amounted  only  to  moderate  and  reasonable 
correction  (Walker  v.  Brown,  iTHumph.  179).  But  in  North  Carolina,  insolence 
in  a  free  negro  was  held  to  justify  an  assault  by  a  white  man  (State  v.  Jowers,  11 
Ired.  555).  ' 


§  2GG.  EVIDENCE  OF  PROVOCATION.  237 

B.  piiblisLed  a  libel  on  A.  in  the  form  of  a  critique  on  the 
novel,  for  which  A.  beat  him.  B.  brought  an  action  for  the 
assault  and  A.  a  cross  action  for  the  libel.  It  was  held  that 
in  the  action  for  the  assault  the  libel  might  be  given  in  evi- 
dence in  mitigation  of  damages,  although  it  was  the  subject 
of  another  action,  but  that  being  so,  the  defendant  ought  not 
to  derive  much  advantage  from  it  in  diminishing  the  dam- 
ages. It  was  also  held  that  the  defendant  need  not  put  in 
the  novel  to  show  that  the  criticism  in  the  novel  was  unfair ; 
neither  could  the  plaintiff  give  the  novel  in  evidence  to  show 
that  the  critique  was  a  fair  one,  but  that  the  plaintiff's 
counsel,  in  his  reply,  might  assume  that  certain  passages  were 
contained  in  the  work,  and  argue  that  the  critique  was  not 
unfair.^  It  is  no  excuse  for  an  assault  that  the  complainant 
said  that  if  he  were  attacked  it  would  be  at  the  assailant's 
risk,  especially  when  the  assailant  was  not  present  at  the 
time  the  declaration  was  made.^  So,  likewise,  in  an  action 
by  husband  and  wife  for  an  assault  on  the  wife,  words  or 
acts  of  the  husband  cannot  be  proved  in  mitigation  of  dam- 
ages unless  the  wife  was  privy  to  them.^  * 


'  Fraser  v.  Berkeley,  7  Car.  &  P.  631 ;  2  M.  &  Rob.  3. 

'  Coleman  v.  State,  28  Geo.  78.  '  Everts  v.  Everts,  3  Mich.  580. 

*  The  principle  upon  which  proof  of  the  language  and  conduct  of  the  plaintiff 
is  admissible  in  these  actions,  in  pi:oper  cases,  is  that  inasmuch  as  the  malice  of 
the  defendant  may  be  proved  to  aggravate  the  damages,  therefore  the  malice  of 
the  plaintiff  may  be  shown  to  mitigate  the  same.  But  the  malice  of  the  defend- 
ant can  never  increase  the  damages  for  the  actual  pecuniary  injury  and  loss;  that 
is,  for  the  mere  personal  injury,  and  such  being  the  case,  the  malice  of  the  plaint- 
iff cannot  mitigate  those  damages.  But  damages  for  injury  to  the  feelings  and 
exemplary  damages  depend  entirely  upon  the  malice  of  the  defendant,  and  these 
may  be  mitigated  by  proof  of  the  malicious  language  or  conduct  of  the  plaintiff, 
although  tlie  same  does  not  constitute  a  legal  justification  of  the  injury  (Wilson 
V.  Young,  31  Wis.  574 ;  approving  of  Prentiss  v.  Shaw,  56  Maine,  427  ;  and  dis- 
approving Morely  v.  Dunbar,  24  Wis.  183).  In  Prentiss  v.  Shaw,  56  Maine,  427, 
which  was  an  action  for  personal  injuries  inflicted  by  the  defendants  upon  the 
plaintiff,  it  appeared  that  the  plaintiff,  upon  being  told  that  President  Lincoln 
had  been  assassinated,  expressed  his  gratification;  that  the  defendants,  acting 
under  tlie  advice  of  a  provost  marshal,  and  being  accompanied  by  an  excited 
crowd,  forcibly  placed  him  in  a  wagon,  took  him  three  miles  to  a  village  and 
kept  him  shut  up  for  several  hours  in  a  room  in  a  hotel  there ;  that  during  this 
time  persons  in  the  crowd  threatened  him  with  extreme  personal  violence ;  that 
on  tile  same  day  he  was  taken  before  a  public  meeting  of  citizens,  and  that  he 
was  discharged,  pursuant  to  a  vote  of  the  meeting,  upon  his  taking  an  oath  to 
support  the  constitution  of  the  United  States.  The  plaintiff  claimed  damages  on 
these  grounds :  1st.  For  the  actual  injury  to  his  person  and  for  his  detention ; 


238  ASSAULT    AND    BATTERY.  §§  267,  268. 

§  267.  Language  employed  bj^  the  plaintiff  toward  tlie 
defendant  on  a  previous  occasion  cannot  be  given  in  evidence 
in  mitigation  of  damages ;  nor  statements  made  by  third 
parties  to  the  defendant.^  But  previous  misunderstanding 
iind  threats  of  the  plaintiff  are  admissible  in  evidence  to 
sho^v  who  was  the  a2:2:ressor.^  And  it  has  been  held  that 
imputations  of  the  same  kind  as  those  which  caused  the 
assault,  previously  communicated  to  the  defendant,  are  ad- 
missible.^ And  where  it  w^as  proved,  that  the  plaintiff 
cursed  the  defendant,  and  when  he  was  struck  was  about  to 
rise  from  the  chair  in  which  he  was  sitting  with  a  stick  in 
his  hand,  evidence  of  threats  made  by  him  against  the 
defendant  within  the  preceding  few  days  was  allowed  in 
order  to  show  the  motive  of  the  defendant's  act.^ 

§  268.  Acts  committed,  or  w^ords  spoken  by  the  plaintiff" 
some  time  previous  to  the  assault,  which  were  a  part  of  a 
series  of  provocations,  often  reiterated,  and  continued  up  to 


2cl.  For  the  injury  to  his  feelings,  the  indignity  and  the  public  exposure;  and, 
3d.  For  exemplary  damages.  The  judge  at  the  trial  in  the  court  below  charged 
the  jury  that  they  could  only  consider  the  evidence  introduced  by  the  defendants 
under  the  second  and  third  of  the  foregoing  heads  in  mitigation  of  damages 
under  either  or  both  of  said  heads,  Ijut  not  under  the  first  head.  A  verdict 
having  been  rendered  for  the  plaintiff  for  six  dollars  and  forty-six  cents,  the 
Supreme  Court,  on  exceptions,  held  that  the  instruction  was  correct.  In  Bir- 
chard  v.  Booth  (4  Wis.  67),  which  was  an  action  for  personal  injuries  inflicted 
by  the  defendant  upon  the  plaintiff,  it  was  held  that  the  latter  was  entitled  to 
recover  a  fair  compensation  for  all  the  losses  and  injuries  which  he  had  actually 
sustained,  without  regard  to  the  provocation  he  might  have  given,  if  such  a  pro- 
vocation did  not  constitute  a  legal  justification.  In  Morely  v.  Dunbar,  24  Wis. 
183,  which  was  an  action  for  assault  and  battery,  it  was  held  that  notwithstand- 
ing what  was  said  in  Richard  v.  Booth,  circumstances  of  provocation  attending 
the  transaction,  or  so  recent  as  to  constitute  part  of  the  res  gestce,  though  not 
sufficient  entirely  to  justify  the  act  done,  might  constitute  an  excuse  which 
would  mitigate  the  actual  damages;  and  where  the  jirovocation  was  great  and 
calculated  to  excite  strong  feelings  cf  resentment,  might  reduce  them  to  a  sum 
which  was  merely  nominal.  In  Wilson  v.  Young,  supra,  Dixon,  Ch.  J.,  in  a  dis- 
senting opinion,  adhered  to  the  foregoing  decision,  and  cited  the  following 
cases: — Rhodes  v.  Bunch,  3  McCord,  65;  McKenzie  v.  Allen,  3  Strobh.  546; 
Mathews  V.  Terry,  10  Conn.  455;  Coxe  v.  Whitney,  9  Mo.  531-532;  Collins  v. 
Todd,  17  Mo.  539-540;  Corning  v.  Corning,  6  N.  Y.  103;  Willis  v.  Forrest,  2 
Duer,  310;  Tyson  v.  Booth,  100  Mass.  25»;  Marker  v.  Miller,  9  Md.  338;  Bingham 
V.  Garnhault,' Buller's  N.  P.  17. 

"  Jarvis  v.  Manlove,  5  Harring.  452;  Guernsey  v.  Morse,  2  Root,  252;  Collins 
V.  Todd,  17  Mo.  537;  Suggs  v.  Anderson,  12  Geo.  461. 

^  Murphy  v.  Dart,  42  How.  Pr.  R.  31. 

'  Dean  v.  Horton,  2  McMuUan,  147.  '  Watkins  v.  Gaston,  17  Ala.  664. 


§  209.  EVIDENCE    OF    PROVOCATION.  239 

the  time  of  the  attack,  are  admissible  in  evidence  in  mitiga- 
tion of  damages.-^  In  Dolan  v.  Fagan,^  the  defendant  offered 
to  prove  a  series  of  provocations  repeated  and  continued 
from  day  to  day;  and  that  whenever  the  parties  met,  the 
plaintiff  insulted  the  defendant  to  such  an  extent,  as  to 
render  the  defendant  frantic.  The  judge  ruled  that  the 
defendant  might  show  anything  that  took  place  on  the  day 
of  the  assault,  or  the  day  previous,  but  not  what  occurred 
several  days  before.  The  General  Term  of  the  New  York 
Supreme  Court,  in  granting  a  new  trial,  upon  exceptions 
taken  to  this  ruling,  held  that  the  question  should  have 
been,  not  how  many  hours  had  elapsed  since  the  provocation 
was  given,  but  whether,  in  view  of  the  circumstances  of  the 
case,  the  party  had  had  a  reasonable  time  to  cool  his  blood ; 
and  that  the  jury  should  have  been  permitted  to  hear  the 
nature  and  extent  of  the  provocation,  so  as  to  determine 
how  much  of  the  beating  complained  of,  was,  if  not  deserved, 
at  least  caused  by  the  plaintiff'  's  provocation. 

§  269.  But  evidence  with  respect  to  the  conduct  of  the 
plaintiff'  at  other  times,  and  upon  other  occasions, — the 
assault  and  battery  having  been  committed  without  any 
provocation  given  at  the  time, — cannot  be  given  in  evidence 
by  the  defendant  in  mitigation  of  damages.  "  It  will  not  do 
to  say  that  a  man  may  beat  another  person,  and  when  sued 
for  the  injury  show  that  on  some  former  occasion,  the  latter 
had  committed  some  offense  for  which  he  justly  merited 
punishment.  If  the  defendant  were  permitted  to  go  beyond 
the  transactions  that  took  place  at  the  time  of  the  assault,  it 
would  be  difficult  to  draw  a  line  between  those  acts  which 
might,  and  those  which  might  not  be  proved.  Besides,  if  the 
defendant  were  permitted  to  show  the  conduct  of  the  plaint- 
iff* at  other  times,  the  plaintiff'  would  have  a  right  to  in- 
troduce evidence  to  explain  that  conduct;  and  thus  the 
attention  of  the  jury  would  be  distracted  with  a  multiplicity 

'  Stetlar  v.  Nellis,  60  Barb.  534;  s.  c.  42  How.  Pr.  R.  163. 
'  63  Barb.  73. 


240  ASSAULT    AND    BATTERY.  §  270 

of  questions  and  issues.^  Evidence,  for  instance,  would  not 
be  admissible,  that  the  plaintiff  a  long  time  before  the 
alleged  assault  and  battery  had  been  hostile  to  the  defendant, 
and  committed  an  assault  upon  him  ;  -  ^  or  that  the  plaintiif 
had  prosecuted  the  defendant's  child  for  malicious  mischief;  ^ 
or  that  the  plaintiff  had  previously  circulated  an  infamous 
story  of  the  defendant's  sister ;  *  or  that  a  week  before  the 
assault,  the  plaintiff  had  slandered  the  defendant's  daughters, 
and  the  same  came  to  the  defendant's  knowledge,  three 
hours  previous  to  the  assault.^ 

36.  Proof  of  mitigating  circumstances. 

§  270.  Circumstances  cannot  be  given  in  evidence  in  miti- 
gation of  damages  where  they  amount  to  a  complete  justifi- 
cation, and  could  have  been  pleaded  as  such.®  But  it  is 
otherwise  when  the  circumstances  merely  palliate  the  charac- 


'  Mathews  v.  Terry,  10  Conn.  455. 

=  Dole  V.  Erskine,  37  N.  Hamp.  316.  '  Scblosser  v.  Fox,  14  Ind.  365. 

*  Avery  v.  Ray,  1  Mass.  13;  Lee  v.  Wolsey,  19  Johns.  319;  Swift's  Dig.  641. 
"  Thrall  v.  Knapp,  17  Iowa,  468.  «  Watson  v.  Christie,  2  B.  &  P.  224. 

*  Dole  V.  Erskine,  supra,  was  an  action  for  assault  and  battery  against 
Erskine  &  Chase,  in  which  the  defendants  offered  to  prove  that  two  or  three 
years  previous  to  the  alleged  assault,  the  plaintiff  told  the  witness  that  some  time 
prior  to  their  conversation,  he  had  had  a  dispute  with  Erskine,  in  the  course  of 
which  he,  the  plaintiff,  had  spit  in  Erskine's  face,  and  called  him  a  damned 
coward ;  and  that  there  had  been  an  enmity  between  the  plaintiff  and  Erskine 
for  some  years  previous  to,  and  down  to  the  time  of  the  alleged  assault ;  this 
testimony  being  offered  to  rebut  the  presumption,  that  Erskine  commenced  or 
committed  the  first  assault,  and  also  in  mitigation  of  damages,  it  was  held 
inadmissible.  The  court  said :  "  The  testimony  offered,  was  of  a  conversation 
between  the  plaintiff  and  witness,  held  from  one  to  three  years  before  the 
alleged  assault,  in  reference  to  another  distinct  transaction  between  the  plaintiff 
and  the  other  defendant  Erskine,  of  a  date  anterior  to  the  conversation,  and  in 
no  w^ay  connected  with  the  alleged  assault,  or  with  any  of  the  circumstances  in 
which  it  originated,  or  by  which  it  was  attended.  If  an  assault  were  committed 
by  tlie  plaintiff  upon  Erskine,  prior  to  the  assault  in  question,  having  no 
connection  with  it  or  with  any  of  its  circumstances;  or  if  a  state  of  enmity 
between  them  resulted  from  the  first  assault,  which  continued  down  to  the  time 
of  the  last,  these  facts  could  furnish  no  just  ground  for  the  inference  that  the 
defendant  Chase  did  not  assault  the  plaintiff  as  alleged,  nor  that  the  plaintiff' 
committed  the  first  assault,  upon  the  occasion  in  question,  upon  Erskine.  nor  that 
Chase  interfered  between  them  to  prevent  a  breach  of  the  peace ;  they  were 
collateral  matters  having  no  relevancy  to  the  issue.  It  is  also  clear  that  there  is 
no  ground  on  which  the  testimony  could  have  been  received  in  mitigation  of 
damages,  unless  the  principle  be  recognized  that  Chase  should  be  held  to  pay 
less  for  his  assault  upon  the  plaintiff,  because  the  plaintiff  had  formerly  been 
guilty  of  an  assault  upon  a  third  person."' 


§  270.  PROOF    or    MITIGATING  CIRCUMSTANCES.  241 

ter  of  the  offense.^  Where  an  action  Avas  brouo-ht  for  as- 
saiilting  the  plaintiff  and  seizing  his  goods,  it  was  held  that 
it  might  be  shown  in  mitigation  of  damages  that  the  defend- 
ant was  a  custom  house  officer,  and  that  the  plaintiff  was 
going  away  from  a  vessel  with  goods  liable  to  duty,  where- 
upon the  defendant  detained  him  and  took  possession  of  his 
goods;  this  not  amounting  to  a  complete  justification,  inas- 
much as  it  was  not  lawful  for  a  custom  house  officer  to  take 
goods  forcibly  from  a  person  without  a  previous  demand.^* 


'  Linford  v.  Lake,  3  H.  &  N.  376 ;  27  L.  J.  Exch.  334. 

^  De  Gondouiu  v.  Lewis,  10  Ad.  &  E.  117. 

*  The  fact  that  the  defendant  procured  his  own  arrest  and  fine  for  the  oflense^ 
is  not  a  defense  (State  v.  Cole,  48  Mo.  70). 

Where  the  assault  and  battery  resulted  from  a  quarrel,  in  which  each  party 
charged  the  other  with  falsehood,  the  defendant  cannot  prove,  in  mitigation  of 
damages,  that  what-  he  said  was  true,  and  Avhat  the  j^laintiff  said  was  false 
(Butt  V.  Gould,  34  Ind.  552). 

The  owner  of  a  slave  gave  A.  liberty  to  whip  him  whenever  he  found  him., 
on  his  premises.  A.  found  the  slave  on  his  premises  and  whipped  him ;  and 
about  three  years  afterward  having  found  him  there  again,  whipped  him  a 
second  time  much  more  severel\-.  In  an  action  against  A.  for  the  second  whip- 
ping, it  was  held  that  evidence  of  the  first  whipping  might  be  given  in  evi- 
dence in  mitigation  of  damages ;  and  that  if  the  plaintiff  wished  to  restrict  its 
influence  upon  the  jury,  he  should  have  asked  the  court  to  instruct  them  ac- 
cordingly (Boling  V.  Wright,  16  Ala. .664). 

In  Wadsworth  v.  Treat,  43  Maine,  163,  which  was  an  action  for  an  assault 
and  battery,  it  appeared  that  the  acts  complained  of  were  committed  soon  after 
the  defendant  had  paid  an  execution  upon  a  judgment  recovered  against  him  in 
favor  of  the  plaintifl''s  son.  It  was  held  not  proper  for  the  defendant,  in 
mitigation  of  damages,  to  introduce  evidence  to  show  that  the  judgment  was 
obtained  in  a  groundless  suit,  which  he  was  prevented  from  defending  by 
inevitable  accident.  Tenney,  C.  J.,  said: — "The  judgment  of  a  court  of  com- 
petent jurisdiction,  until  reversed,  is  conclusive  evidence  of  a  just  and  legal  debt. 
To  receive  or  enforce  payment  thereof,  by  the  creditor  or  his  agent,  is  no  ground 
of  complaint  on  the  part  of  the  debtor;  and  if  the  evidence  offered  were  al- 
lowed, it  would  authorize  the  jury  to  treat  as  a  palliation  of  the  defendant's  un- 
lawful and  even  criminal  acts,  the  plaintiff's  conduct  which  was,  in  all  respects, 
legal  and  proper." 

In  Alabama  and  South  Carolina,  it  cannot  be  shown  in  mitigation  of  damages 
that  the  defendant  has  been  indicted,  convicted  and  fined  (Phillips  v.  Kelly,  29 
Ala.  628;  Wolft"v.  Cohen,  8  Rich.  S.  C.  R.  144).  But  in  Alabama,  it  has  been 
held  that  in  trespass  for  injuries  to  the  person,  the  defendant  may  give  in  evi- 
dence the  record  of  a  prosecution  for  felony  pending  against  him,  and  prove  by 
parol,  that  the  indictment  and  the  civil  action  are  founded  on  the  same  transac- 
tion (Blackburn  v.  Minter,  22  Ala.  613).  Evidence  that  the  defendant  endeavored 
to  have  an  interview  with  the  plaintiff,  in  regard  to  the  affair,  and  that  he 
voluntarily  paid  the  surgeon  for  his  attendance,  is  not  admissible  to  disprove  the 
intent  and  circumstances  of  the  original  attack  (Johnson  v.  McKee,  27  Mich. 
471).  That  a  blow  was  given  in  the  presence  of  the  court,  may  be  proved  in 
aggravation  of  the  damages,  though  it  might  also  have  been  punished  by  the 
court  as  a  contempt  (Pendleton  v.  Davis.  1  Jones'  Law,  N.  C.  98). 
Vol.  I.— 16 


242  ASSAULT    AND    BATTERY.  §  271. 

§  2ri.  In  an  action  for  assaulting  the  plaintiff  and  at- 
temj)ting,  against  her  will,  to  have  carnal  connection  with 
her,  and  by  force  and  violence,  and  against  her  will,  to  ravish 
her,  evidence  to  repel  the  allegation  of  force,  to  show  con- 
sent, or  that  no  violence  was  done  or  designed  to  the  will  of 
the  prosecutrix,  would  be  admissible  as  tending  to  disprove 
the  very  body  of  the  offense.  To  this  end  it  may  be  proved 
that  the  prosecutrix  has  previously  had  voluntary  sexual  in- 
tercourse with  the  defendant.  The  princij^le  uj)on  which 
such  evidence  is  allowed  is,  that  it  is  much  more  imj^robable 
that  a  common  prostitute,  or  the  prisoner's  concubine,  would 
withhold  her  assent,  than  one  less  depraved.  Such  facts  are 
proper  for  the  consideration  of  the  jury,  on  the  ground  that 
they  furnish  evidence  of  consent,  or  evidence  from  which  the 
juiy  may  infer  consent.  Within  the  same  princij)le,  every 
species  of  evidence  showing  previous  lascivious  conduct  on 
the  part  of  the  plaintiff,  in  the  presence  of  the  defendant,  or 
in  her  intercourse  with  him,  designed  or  adapted  to  incite  or 
invite  him  to  take  liberties  with  her  person,  or  to  induce  him 
to  believe  that  such  advances  on  his  part  would  not  be  un- 
acceptable to  her,  are  admissible;^  and  the  defendant  may 
prove  that  the  plaintiff  had  intercourse  with  other  persons 
than  him,  about  the  time  of  the  alleored  assault.^  * 


'  Grossman  v.  Bradley,  53  Barb.  125 ;  Ford  v.  Jones,  62  lb.  484. 

^  Watry  v.  Ferber,  18  Wis.  500. 

*  In  Grossman  v.  Bradley,  stq^ra,  the  defendant,  at  the  trial  at  the  circuit,  of- 
fered to  prove  that  every  advance  that  was  made  between  the  parties  of  a  las- 
civious or  licentious  character,  was  made  by  the  plaintiff.  He  made  thirteen 
diflerent  offers  of  evidence  tending  to  tlie  same  end — to  show  lascivious  conduct 
on  the  part  of  the  plaintiff,  and  most  of  them  to  acts  to  or  with  the  defendant, 
or  in  liis  presence.  The  evidence  was,  however,  excluded  and  a  verdict  found 
for  the  plaintiif.  The  Supreme  Court,  in  granting  a  new  trial,  said: — "All  of 
this  class  of  evidence,  I  think,  was  admissible.  The  facts  stated  in  these  offers, 
all  tended  to  prove  either  that  the  plaintiff  was  seeking  to  induce  the  defendant 
to  have  sexual  intercourse  with  her,  or  was  seeking  to  entrap  him  iuto  difficul- 
ties, such  as  the  commencement  and  pendency  of  this  suit  involves.  Upon  that 
assumption,  if  the  latter  were  her  purpose,  it  is  none  the  less  fatal  to  the  action 
than  the  former.  It  takes  away  the  idea  that  force  was  necessary,  or  designed 
or  attempted,  to  have  such  intercourse.  A  woman  who  leads  a  man  into  a  trap,  or 
uses  meretricious  arts  with  such  a  design,  cannot  pretend  that  there  was  an  at- 
tempt to  ravish  her,  or  that  he  attempted  such  ends  by  force  and  against  her 
will  and  utmost  resistance.  The  offense,  and  the  cause  of  action,  consists  in  the 
attempt  to  accomplish  the  end  implied  by  force.     It  is  absurd  to  impute  such 


§  272.  EVIDENCE   AS   TO   CHARACTER.  243 

37.  Evidence  as  to  character. 

§  272.  The  bad  character  or  disposition  of  the  plaintiff, 
as  that  he  is  a  turbulent  and  desperate  man,  is  not  admissi- 
ble in  evidence  by  way  of  excuse ;  ^  especially  where  such 


design  when  the  conduct  of  the  woman  repels  all  idea  of  the  occasion  or  the 
necessity  for  the  use  of  force.  The  evidence  excluded,  I  think,  was  admissible, 
as  tending  to  show  consent  on  the  part  of  the  plaintift',  and  that  no  uifdesired 
force  or  violence  was  used  or  attempted  upon  her  person,  and,  in  this  view,  was 
a  complete  defense  to  tlie  cause  of  action.  The  other  exceptions,  for  the  ex- 
clusion of  evidence  tending  to  show  improper  conduct  between  the  plaintiff  and 
other  persons,  stand  upon  different  grounds.  The  evidence  of  particular  acts  of 
immodesty,  on  the  part  of  the  plaintiff"  or  prosecutrix,  in  this  class  of  cases, 
should  be  limited,  I  think,  to  those  committed  with,  or  in  the  presence  of,  the 
defendant."  Referring  to  The  People  v.  Jackson,  3  Parker,  398,  as  overruling, 
on  the  latter  point.  The  People  v,  Abbott,  19  Wend.  192,  Johnson,  J.,  in  the 
course  of  along  dissenting  opinion,  said: — ''The  evidence  had  no  legitimate 
tendency  to  show  that  the  plaintiff  invited  or  encouraged  the  defendant's  acts, 
on  the  day  in  question.  She  might  have  invited  or  encouraged  similar  acts,  on 
other  days,  and  the  evidence  offered  might  have  proved  that  fact,  but  it  could 
raise  no  legitimate  inference  that  the  acts  were  either  invited  or  encouraged  on 
the  day  and  occasion  in  question.  Suppose,  in  an  action  of  this  character  be- 
tween two  men,  the  defense  should  be  that  the  assault  complained  of,  was  in  an 
encounter  in  which  the  plaintiff"  had  challenged  the  defendant  to  fight  with  him, 
and  they  had  mutually  agreed  to  figlit.  That,  if  true,  would  be  a  good  defense 
in  the  absence  of  excessive  violence.  But  suppose,  further,  that  the  defendant 
should  offer  to  prove  such  challenge  and  agreement,  on  the  occasion  in  question, 
by  showing  that  the  plaintiff"  had  done  so  on  a  previous  occasion.  The  evidence 
would  be  palpably  incompetent ;  and  the  same  rule  must  apply  here.  In  each 
case,  the  fact  to  be  made  out  is  the  invitation  and  consent ;  and  it  is  perfectly 
immaterial  whether  the  encounter,  in  regard  to  which  the  assent  is  sought  to  be 
established,  is  of  an  amatory  or  a  pugnacious  character.  The  consent,  in  the  one 
case,  must  be  established  by  evidence  of  the  same  character  that  would  be  neces- 
sary to  establish  it  in  the  other.  There  cannot  be  one  rule  where  two  males  are 
parties,  and  another  where  a  female  is  a  party  against  a  male.  Or  take  this  case 
upon  the  other  side.  Suppose  the  plaintiff,  by  way  of  proving  that  the  defend- 
ant had  assaulted  her  on  the  occasion  in  question,  had  offered  to  prove  that  he 
had  laid  hands  upon  her,  on  some  previous  occasion,  without  her  consent  and 
against  her  will ;  I  think  no  one  will  pretend  that  such  evidence  would  have 
been  competent,  by  way  of  establisliing  the  facts,  if  objected  to.  Or,  still 
further,  suppose  the  offer  had  been  to  show  that  the  defendant  had,  on  other  oc- 
casions, assaulted  other  females  in  the  same  way,  as  evidence  bearing  upon  the 
issue.  These  illustrations  must  show,  I  think,  that  the  evidence  was  wholly 
inadmissiljle  upon  the  issue.  *  *  *  *  It  is  claimed  that  the  evidence  was 
erroneously  excluded  for  the  reason  that  the  plaintiff",  in  her  complaint,  alleged 
that  the  assault  and  l^attery  complained  of  was  committed  with  tlie  intent,  on 
the  part  of  the  plaintiff,  to  ravish.  But  this  is  no  reason,  whatever,  for  its  ad- 
mission. The  intent  was  not  the  gravamen  of  the  action,  in  any  sense  or  degree. 
It  was  no  part  of  the  issue  to  be  tried.  It  was  a  mere  civil  action;  and  the  cause 
of  it  did  not  rest  in  the  intent  of  tlie  plaintiff'  at  all,  as  will  be  seen  upon  a  mo- 
ment's careful  and  candid  consideration.  The  very  act  of  battery  implies  an  un- 
lawful intent,  and  it  is  not  the  subject  of  proof.  It  is  quite  immaterial,  so  far 
as  the  cause  of  action  is  concerned,  what  the  particular  intent  was,  if  the  act  was 
not  justifiable." 

'  Smithwick  v.  Ward,  7  Jones  L.  N.  C.  64. 


244  ASSAULT   AND   BATTERY.  §  272. 

character  had  nothiDg  to  do  with  the  assault ;  ^  notwithstand- 
ing the  statement  or  claim  of  the  plaintiff's  counsel  that  the 
assault  committed  by  the  defendant  tended  to  degrade  the 
plaintiff  and  injure  his  standing  and  reputation  in  the  com- 
munity. ^  The  fact  that  a  man  bears  a  bad  character,  or 
keeps  company  with  persons  of  evil  repute,  furnishes  no  just 
provocation  or  palliation  for  doing  violence  to  his  person. 
He  may  forfeit  the  good  opinion  of  his  fellow  men,  and  be- 
come an  object  of  pity  or  contempt,  by  reason  of  his  evil 
habits  and  associations,  and  want  of  moral  worth ;  but  there 
is  no  principle  of  law  or  ethics,  on  which,  for  such  a  cause^ 
imj^unity  is  to  be  granted  to  those  who  inflict  injuries  upon 
another,  or  full  indemnity  to  be  denied  to  a  party  for  a  vio- 
lation of  the  sanctity  of  his  j^erson.  ^*  In  an  action  for 
assault  and  battery,  committed  in  aiTestiug  the  plaintiff 
while  he  was  intoxicated,  the  defendants  offered  to  show  in 
justification,  that  ardent  spirits  made  the  plaintiff  furious 
and  ungovernable,  and  that  a  year  or  more  subsequent  to 
the  alleged  assault,  the  plaintiff',  while  drunk,  threw  stones 
at  a  numJDer  of  persons,  resisted  the  officers  who  arrested 
him,  and  committed  other  acts  of  violence ;  but  it  was  held 
that  the  proposed  evidence  was  not  admissible.  ^  Where  the 
assault  and  battery  was  committed  on  the  plaintiff  after  he 
had  left  a  house  into  Avhich  he  had  wrongfully  intruded,  it 
was  urged  in  behalf  of  the  defendant  that  evidence  of  the 


•  McKenzie  v.  Allen,  3  Strobh.  546.  ^  Bruce  v.  Priest,  5  Allen,  100. 

'  Brown  v.  Gordon,  1  Gray,  182 ;  Ross  v.  Lapham,  14  Mass.  375 ;  1  Greeulf. 
Ev.  §§  52,  55 ;  2  lb.  §  369. 

^  Ellis  V.  Short,  31  Pick.  142. 

*  An  assault  and  battery  is  none  the  less  a  wrong  for  -which  the  party  injured 
is  entitled  to  damages  because  inflicted  on  a  person  enfeebled  by  disease,  or  by 
any  other  cause.  The  defendant  cannot  therefore  screen  himself  from  the  legiti- 
mate consequences  of  his  own  unlawful  act  by  proof  of  the  previous  bad  habits 
of  the  plaintiS"  (Littlehale  v.  Dix,  11  Cush.  364).  The  following  evidence  offered 
by  the  defendant  in  mitigation  of  damages,  was  held  not  admissible:  That  the 
plaintiff  ''was  a  lazy  vagabond  who  would  not  work  if  he  could  help  it;  that  he 
had  no  property  that  could  be  reached  by  legal  process ;  that  he  had  been  in 
debt  to  the  defendant  a  long  time,  and  would  not  pay  him;  that  the  defendant 
on  the  day  of  the  assault,  had  offered  the  plaintiff  ten  dollars  an  hour  if  he  would 
work  for  him  in  payment  of  said  debt,  but  that  he  had  refused  to  do  it  "  (Ward 
V.  State,  28  Ala.  53). 


§  273.  EVIDENCE   AS   TO   CHAEACTEE.  245 

bad  character  of  the  plaintiff  and  his  companion  was  admis- 
sible in  connection  with  the  facts  which  took  place  in  the 
house  previous  to  the  assault.  But  the  court  remarked  that 
there  were  two  answers  to  such  a  suggestion.  The  first  was, 
that  those  facts  had  no  such  connection  with  the  assault  as 
to  form  part  of  the  res  gesUe.  When  the  assault  was  com- 
mitted, the  plaintiff  had  left  the  house,  and  thus  removed 
any  cause  of  provocation  which  his  presence  there  had  occa- 
sioned. That  the  other  and  better  answer  was,  that  the  mo- 
tive which  led  the  defendant  to  order  the  plaintiff  to  leave 
the  house,  was  wholly  immaterial  to  the  issue.  He  had  a 
right  to  give  such  an  order,  and  tlie  plaintiff  was  bound  to 
obey  it.  After  it  was  obeyed,  it  was  quite  immaterial  to 
show  that  the  character  of  the  plaintiff  was  such  as  to  render 
Ms  presence  in  the  dwelling  of  the  defendant  disagreeable  or 
intolerable,  or  that  he  had  valid  and  sufficient  reasons  for 
removing  him  therefrom.  ^ 

§  273.  It  has  sometimes  been  contended  that  where  the 
action  is  to  recover  damages  for  an  injury  committed  against 
the  person  with  violence,  alleging  malice,  and  where  the  evi- 
dence is  conflicting,  proof  of  the  defendant's  general  good 
character  should  be  received.  But  there  seems  to  be  no 
authority  which  recognizes  any  sucb  distinction  or  excep- 
tion. ^  All  the  circumstances  attending  an  assault,  the  lan- 
guage, gestures,  looks,  and  general  deportment  of  the  par- 
ties— everything,  in  short,  which  can  j^roperly  be  deemed 
res  gestcB^  may  be  laid  before  the  jury.  All  these  are  fairly 
involved  in  the  issue,  and  the  parties  are  bound  to  be  pre- 
pared with  proof  concerning  them.  But  beyond  this,  they 
cannot  be  permitted  to  go.  The  character  of  the  parties  is 
in  no  way  concerned  in  the  nature  of  tke  actiou.  It  is  wholly 
a  collateral  matter,  and  if  introduced,  would  raise  a  false 
issue  entirely  aside  from  the  merits  of  the  case. 


'  Bruce  v.  Priest,  supra;  Luud  v.  Tyngsborough,  9  Cush.  36. 

*  Porter  v.  Seller,  33  Penn.  St.  R.  434;  Smithwick  v.  Ward,  7  Jones,  N.  C.  64. 


246  ASSAULT    AND    BATTERY.  §§  274,  275- 

38.  Proof  of  consequences  of  ivrongful  act. 

§  274.  The  plaintiff  may  introduce  under  a  general  alleg- 
ation evidence  of  all  the  immediate  consequences  and  natural 
results  of  which  the  act  was  the  direct  cause,  and  the  jury- 
are  to  determine  whether  the  consequences  did  or  did  not 
necessarily,  or  beyond  reasonable  doubt,  result  from  the  in- 
jury.^ Where,  therefore,  the  plaintiff  offered  to  prove  by  the 
physician  who  attended  him,  that  he  afterward  had  a  fever, 
which,  the  physician  thought  might  have  been  caused  by  the 
battery,  the  evidence  was  held  admissible,  although  objected 
to,  on  the  ground  that  the  declaration  did  not  allege  any 
special  or  particular  consequence.^  So  likewise,  in  an  action 
for  breaking  and  entering  a  man's  dwelling-house,  and  as- 
saulting and  beating  liim,  the  plaintiff  was  permitted  to 
prove  that  his  wife  was  so  terrified  by  the  conduct  of  tlie 
defendant  that  she  was  immediately  taken  ill  and  died  shortly 
afterward,  not  as  a  substantive  ground  of  damage,  but  in 
order  to  show  how  outrao-eous  and  violent  had  been  the  con- 
duct  of  the  defendant.*  But  the  amount  of  a  physician's 
bill,  or  other  consequential  damage,  cannot  be  j)roved  unless 
it  be  specially  averred.*  * 

§  275.  Results  of  the  battery  which  are  purely  conjec- 
tural cannot  be  given  in  evidence,  although  they  be  alleged 
as  special  damage.  As  for  instance :  the  loss  by  reason  of  the 
battery  of  the  position  of  surgeon's  mate  ;  or  that  the  plaint- 
iff, who  was  a  merchant,  was  unable  to  go  to  his  store, 
whereby  he  lost  the  opportunity  to  close  a  bargain  which 
would  have  been  profitable ;  or  that  a  farmer  was  incapaci- 
tated from  gathering  bis  crops,  and  thereby  lost  thera.^     In  an 


'  Hodges  V.  Nance,  1  Swan,  Tenn.  57. 

^  Avery  v.  Ray,  1  Mass.  12.  '  Huxley  v.  Berg,  1  Stark.  98. 

*  O'Leary  v.  Rowan,  31  Mo.  117;  Moore  v.  Adam,  2  Chit.  198. 
^  Brown  v.  Cumraings,  7  Allen,  507. 

*  In  an  action  against  a  railroad  company  for  an  injury  received  throiigli  tlie 
wanton  misconduct  of  an  employee,  evidence  of  the  expenses  of  the  litigation, 
including  the  proper  fees  of  counsel,  is  admissible  (New  Orleans  &c.  R.  R.  Co. 
V.  Allbritton,  38  Miss.  242). 


§  27G.  EVIDENCE  AS  TO  PECUNIARY  CONDITION.  247 

action  by  husband  and  wife  for  an  assault  and  battery  on  the 
latter,  the  loss  of  the  wife's  time  cannot  be  taken  into  con- 
sideration in  assessing  the  damages.^  In  cases  like  the  fore- 
going, there  are  necessarily  intervening  events  and  independent 
causes  which  make  the  connection  with  the  original  injury 
more  or  less  remote.  The  rule  under  consideration  applies 
equally  to  the  defense.  Therefore,  in  an  action  for  biting 
and  bruising  the  plaintiff's  finger  so  that  it  had  to  be  amjou- 
tated,  it  was  held  that  evidence  was  not  admissible  that  the 
plaintiff  was  an  habitual  drunkard  about  and  after  the  time 
of  the  alleged  trespass,  from  which  the  jury  might  infer  that 
the  loss  of  the  finger  resulted  from  a  state  of  health  produced 
by  intemperance." 

39.  Evidence  as  to  pecuniary  condition  of  party. 

§  276.  An  inquiry  into  the  pecuniary  circumstances  of 
the  party  has  often  been  permitted  on  the  question  of  dam- 
ages. In  Illinois,  it  Avas  held  that  evidence  might  be  given 
of  the  pecuniary  condition  of  the  plaintiff',^  and  that  it  might 
be  proved  that  the  plaintiff  was  poor  and  the  defendant 
rich.*  In  North  Carolina,  the  wealth  of  the  defendant,  and 
in  Delaware  his  condition  and  pursuit  in  life,  may  be  gone 
into.^  In  Kentucky,  the  admission  of  evidence  of  the  wealth 
of  the  defendant  has  been  held  no  ground  for  a  reversal  of 
the  judgment  unless  the  verdict  is  excessive.®  In  Wisconsin, 
where  in  an  action  for  assault  and  battery  there  was  no  proof 
that  all  of  the  defendant's  means  were  required  for  the  sup- 
port of  his  family,  it  was  held  that  evidence  of  the  number,  age 
and  condition  of  his  family,  offered  in  mitigation  of  damages, 
was  properly  rejected.'^ 


*  Barnes  v.  Martin,  15  Wis.  240. 

'  Wheat  V.  Lowe,  7  Ala.  311.  '  Cochran  v.  Ammou,  16  111.  316. 

*  McNamara  v.  King,  2  Gilman,  432. 

^  Pendleton  v.  Davis,  1  Jones'  Law,  N.  C.  98;  Jarvis  v.    Manlove,  5  Earring. 
Del.  453. 

°  Gore  V.  Chadwick,  6  Dana,  477. 
'  Schmidt  v.  Pfeil,  24  Wis.  452. 


248  ASSAULT    AND    BATTERY.  §§  277,  278. 

40.  Damages  in  general. 
§  277.  The  authorities  class  assault  and  battery  with 
some  other  causes  of  action  touching  the  power  of  juries  in 
the  assessment  of  damao-es,  and  allow  them  to  a  o-reat 
extent  the  exercise  of  their  own  discretion ;  there  being  in 
general  no  precise  rule  by  which  the  injury  can  be  measured.^ 
The  jury  may  have  regard  to  time  and  place,  and  in  fact 
every  other  circumstance  which  has  injuriously  affected  the 
plaintiff.''^  He  is  entitled  to  recover  for  the  bodily  and 
mental  pain  endured,  and  for  the  loss  sustained;^  and  the 
expenses  of  the  litigation  may  be  taken  into  consideration.* 
In  Klein  v.  Thompson,^  it  was  held  that  the  plaintiff  was 
entitled  to  be  allowed  the  amount  of  the  doctor's  bill,  al- 
though paid  previous  to  the  trial  by  the  trustees  of  the 
township  to  whom  he  was  under  no  legal  obligation  to  refund 
it.  And  where  it  appeared  that  a  former  trial  for  the  same 
cause  was  brought  to  a  premature  close  by  the  death  of  one 
of  the  jurors,  it  was  held  that  the  jury  might  consider  the 
exj^enses  of  the  former  trial,  in  their  estimate  of  the  damages.*' 

§  278.  It  is  proper  for  the  jury  to  consider  the  probable 
future  injury  that  will  result  to  the  plaintiff"  from  the  act  of 
violence.     For  the  damages,  when  given,  are  taken  to  em- 


'  Wadsworth  v.  Treat,  43  Maine,  163:  Com.  v.  Sessions,  5  Mass.  437;  CofBn 
T.  Coffin,  4  lb.  41 ;  Brunswick  v.  Slowniian,  8  C.  B.  317;  Gregory  v.  Cotterell,  5 
El.  &  Bl.  571;  L.  J.  Q.  B.  217;  Sedg.  on  Dam.  6th  ed.  p.  669.  note  1. 

'  TuUidge  v.  Wade,  3  AVils.  18;  Taber  v.  Hutson,  5  Ind.  322;  Cox  v.  Vau- 
derkleed,  21  lb.  164. 

=  Pennsvlv.  «&c.  Canal  Co.  v.  Graham,  63  Penn.  St.  R.  290 ;  Matteson  v.  N. 
Y.  Cent.  R.  R.  Co.  62  Barb.  364;  Stockton  v.  Frev,  4  Gill,  406;  Smith  v. 
Overbv,  30  Geo.  241 ;  Holyoke  v.  Grand  Trunk  R.  R.  48  N.  Hamp.  541 ;  Smith 
-V.  Hoicomb,  99  Mass.  552. 

^  Gladwell  v.  Steggall,  5  B.  N.  C.  733;  Cleveland  &c.  R.  R.  Co.  v.  Bartram, 
11  Ohio,  N.  S.  457;  Roberts  v.  Mason,  10  lb.  277;  New  Orleans  &c.  R.  R.  Co. 
-V.  Allbritton,  38  Miss.  242 ;  ante,  §  215. 

'  19  Ohio  St.  R.  5G9. 

®  Noyes  v.  Ward,  19  Conn.  250;  and  see  Linsley  v.  Bushnell,  15  lb.  236. 

*  But  the  plaintiff  is  not  entitled  to  recover  for  damage  which  is  not  the 
direct  result  of  the  wrongful  act.  Where  A.  committed  an  assault  and  ijattery 
UDon  B.  in  the  course  of  which  B.  fired  a  pistol  and  wounded  C.  and  C.  recov- 
ered against  B.  therefor,  it  was  held  that  B.  in  an  action  against  A.  for  the 
assault  was  not  entitled  to  recover  the  same  amount  as  so  much  to  be  reimbursed 
as  special  damages  (Whatley  v.  Murrell,  1  Strobh.  389). 


§  279.  DAMAGES   FOR   WOUNDED   FEELING.  249 

brace  all  the  injurious  consequences  of  the  wrongful  act,  un- 
known as  well  as  known,  which  may  thereafter  arise. 
Accordingly,  w^here  the  plaintiff  had  received  an  apparently 
slight  blow  on  the  head,  for  which  he  recovered  small  dam- 
ages, and  it  afterward  appearing  that  the  skull  had  been  frac- 
tured, he  brought  a  second  action,  which,  it  was  contended, 
might  be  maintained  for  the  reason  that  the  former  recovery 
was  for  a  mere  battery,  and  this  for  a  mayhem,  it  w^as  held 
that  the  plaintiff  could  not  recover,  for  there  w^as  but  one 
blow,  and  that  was  the  cause  of  action  in  both  suits ;  and 
the  distinction  was  pointed  out  between  such  a  case  and  one 
of  continuing  nuisance,  where  each  continuance  is  a  fresh 
nuisance.-* 

41.  Damages  for  wounded  feeling. 
§279.  The  insult  and  indignity  inflicted  upon  a  person 
by  giving  him  a  blow^,  w^ith  anger,  rudeness,  or  insolence,  oc- 
casion mental  suffering.  In  many  cases  they  constitute  the 
principal  element  of  damage.  They  ought  to  be  regarded  as 
an  aggravation  of  the  tort,  on  the  same  ground  that  insult 
and  indignity,  offered  by  the  plaintiff  to  tke  defendant,  wMch 
provoked  the  assault,  may  be  given  in  evidence  in  mitigation 
of  damages.  Even  w^here  there  is  no  insult  or  indignity, 
mental  suffering  may  be  a  ground  of  damage  in  action  for  an 
injury  to  the  person.^  In  every  case  where  the  act  complained 
of  was  wantonly  done,  and  there  is  nothing  in  the  evidence 
which  shows  improper  conduct  in  the  plaintiff  at  the  time  he 
received  the  injury,  he  will  be  entitled  to  the  presumption 
that  he  has  suffered,  in  his  feelings,  as  every  honorable  man 
would  be  likely  to  do  under  similar  circumstances.^  *  Where, 

'  Fetter  v.  Beal,  1  Ld.  Raym.  339;  ante,  §§  22,  112. 

"  Smith  V.  Holcomb,  supra\  Canning  v.  Williamstown,  1  Cush.  451. 

'  Wadsworthv.  Treat,  43  Maine,  163;  Avery  v.  Rav,  1  Mass.  12;  Sampson  v. 
Coy,  15  lb.  493. 

*  In  Wadsworth  v.  Treat,  si/jn-a,  the  mental  anxiety,  public  degradation,  and 
■wounded  sensibility  of  the  plaintifl',  being  insisted  upon  to  enhance  tiie  damages 
of  an  alleged  assault  and  battery,  it  was  objected  that  tliey  were  not  specified  in 
the  declaration.  The  court,  in  holding  that  this  was  not  necessary,  said : — "It 
cannot  be  doubted,  that  mental  anxiety,  and  injury  to  the  finer  feelings  of  human 
nature,  as  well  as  bodily  suffering,  may  be  produced  from  wanton  and  unpro- 


250  ASSAULT    AND    BATTERY.  g  279. 

in  an  action  against  a  colonel  of  militia,  for  ordering  tlie 
plaintiff,  a  common  soldier,  to  be  whipped,  it  appeared  that 
the  colonel  had  acted  nnjustifiably  and  illegally,  and  out  of 
mere  spite  and  revenge,  and  the  jury  gave  150?.  damages,  and 
a  motion  was  made  for  a  new  trial,  on  the  ground  that  the 
man  appeared  to  have  been  moderately  punished  and  not 
much  hurt,  and  that  the  damages  were  disproportioned  to 
his  sufferings,  the  court  refused  the  application,  because  the 
man  was  scandalized  and  disgraced  by  such  a  punishment.^ 
In  Eeed  v.  Davis,^  the  defendants  put  the  plaintiff's  furniture 
out  of  the  house  in  which  he  was  lawfully  in  possession, 
as  tenant  at  will,  and  forcibly  ejected  him  and  his  family. 
Some  of  the  defendants  seem  to  have  thought  that  the  tres- 
pass could  be  committed  with  impunity,  on  account  of  the 
poverty  of  the  plaintiff.  They  took  the  plaintiff  by  the 
shoulder,  and,  to  use  their  own  language,  "  huddled  him  out 
of  the  house."  They  took  hold  of  the  plaintiff's  wife  and 
compelled  her  to  go  out  of  the  house  into  the  highway,  with 
an  infant  in  her  arms,  and  destitute  of  suitable  clothing 
which  she,  in  vain,  attempted  to  find  among  the  goods  which 
were  put  in  the  road.  All  the  furniture  was  put  out  of  the 
house  into  a  heap  in  the  highway,  and  the  plaintiffs  papers 
were  blown  about  the  road,  and  some  articles  of  clothing 
driven  by  the  wind  several  rods  from  the  house.  During 
this  scene,  the  wife  was  greatly  agitated.  The  plaintiff  re- 
sisted as  long  as  he  could,  but  was  obliged  to  yield  to  su- 
perior force.  The  jury  having  found  a  verdict  for  the  plaintiff' 
for  $500  damages,  a  motion  for  a  new  trial,  because  the 
damages  were  excessive,  was  denied,  the  court  being  equally 
divided.  In  an  action  for  wrongfully  ejecting  the  plaintiff 
from  a  railroad  train,  he  is  entitled  to  more  than  nominal 
damages,  although  he  sustains  no  pecuniary  loss  and  no  in- 


voked violence  inflicted  by  the  hand  of  another.  And  if  the  former  is  a  proper 
basis  of  damages,  under  a  specific  allegation  in  the  writ,  it  does  not  cease  to  be 
so  in  a  general  declaration.  The  obviously  probable  effects  of  a  beating,  may  be 
given  in  evidence,  though  not  alleged  in  the  declaration." 

'  Benson  v.  Frederick,  3  Burr.   1845.  '  4  Pick.  216. 


§  280.    MALICIOUS   INTENT   AS   AFFECTING  THE   DAMAGES.       251 

jury  to  bis  person.  In  such  case,  the  jury  may  take  into  ac- 
count, not  only  the  annoyance,  delay,  and  risk  to  the  plaintiff, 
but  also  the  indignity.^  But  in  an  action  by  husband  and 
wife,  for  an  assault  and  battery  on  the  wife,  the  public  odium 
incurred  by  exposing,  at  the  trial,  the  domestic  quarrels  of 
the  husband  and  wife,  cannot  be  considered  by  the  jury  in 
fixino;  the  damao;es.^  * 

42.  Malicious  intent  as  affecting  the  damages. 

§  280.  Where  malice  is  proved  or  implied  from  the  cir- 
cumstances, juries  may  give  exemplary  damages  beyond  those 
sustained  by  the  plaintiff,  by  way  of  punishing  the  defendant, 
and  for  the  purpose  of  setting  a  wholesome  example.^  Ac- 
cordingly, in  an  action  for  attacking  the  plaintiff  and  biting 
off  part  of  his  nose,  the  majority  of  the  court  held  that  the 
following  instruction  to  the  jury  by  the  judge  before  whom 
the  cause  was  tried  was  correct :  that  "  if  they  should  find 
that  the  defendant  committed  the  act  wantonly,  they  would 
be  authorized,  if  they  thought  proper,  in  addition  to  the 
actual  damages  the  plaintiff^  had  sustained,  to  give  him  a 
ftu'ther  sum  as  exemplary  or  vindictive  damages,  both  as  a 
protection  to  the  plaintiff  and  as  a  salutary  example  to 
others  to   deter  them  from  offending  in  like  cases."  *  f     So 


'  Chicago  &c.  R.  R.  Co.  v.  Flagg,  43  111.  364;  Same  v.  Williams,  55  lb.    185. 

°  Barues  v.  Martin,  15  Wis.  240. 

'  Lane  v.  Wilcox,  55  Barb,  615;  McNaniara  v.  King,  2  Oilman,  432;  Foote 
V.  Nichols,  28  111.  486;  Causae  v.  Anders,  4  Dev.  &  Bat.  246;  Slater  v.  Sherman, 
5  Bush,  206;  Reader  v.  Purdy,  48  111.  261;  Baltimore  &c.  R.  R.  Co.  v.  Blochar, 
27  Md.  277;  Green  v.  Craig,  47  Mo.  90;  Farwell  v.  Warren,  51  111.  467;  ante, 
§115. 

'  Pike  V.  Dilling,  48  Maine,  539. 

*  In  an  action  of  trespass  for  expelling  the  plaintiii'  and  his  wife  from  the 
town,  and  breaking  up  the  plaintiff's  business,  injuring  his  jDroperty,  making 
his  wife  ill,  whereby  he  ''  lost  her  comfort  and  services,  and  was  put  to  great  ex- 
pense for  medicine  and  medical  aid,"  he  cannot  recover  for  the  wife's  ''mental 
anguish,  in  being  separated  from  her  husband,  nor  for  her  feelings  as  a  woman 
compelled  to  al)andon  a  chosen  residence,  and  turn  her  back  on  associations  formed 
in  early  life.''  Damages  for  such  injuries,  if  recoverable,  could  only  be  recovered 
in  an  action  in  which  the  husband  and  wife  joined  (Hooper  v.  Haskell,  56  Maine, 
251 ;  citing  Laughlin  v.  Eaton,  54  lb.  156. 

t  In  the  above  case,    the  jury  having  found  a  verdict  for  the  plaintiff  for 
$151.25,  the  court,  in  overruling  exceptions  to  it,  remarked  that  the  question 


252    .  ASSAULT  AND  BATTERY.  §  280. 

likewise,  in  auotber  case,  tlie  jury  were  instructed  that  if  they 
believed  that  the  attack  was  wanton  and  unprovoked  and 
with  a  deadly  weapon,  they  could  give  exemplary,  or  even 
vindictive  damages,  if  necessary  to  repress  the  practice  of 
carrying  and  using  deadly  or  dangerous  w^eapons.  It  was 
objected  to  this  instruction  that  there  was  no  evidence  that 
any  such  practice  existed  in  the  community  where  the  injury 
was  inflicted  and  the  cause  tried.  It  was  held  that  the 
direction  was  correct  without  the  reason.  If  the  attack  was 
wanton  and  unprovoked,  and  with  a  deadly  weapon,  it  was 
a  case  for  vindictive  damages,  whether  there  was  such  a  practice 
or  not,  and  whether  it  would  repress  it  or  not.  The  addition 
could  not  injure  the  defendant,  but  might  benefit  him,  for 
the  jury  might  infer  that  unless  it  was  necessary  to  repress 
the  practice  spoken  of,  vindictive  damages  should  not  be 
given.^  In  Maryland,  where  a  child  was  run  over  by  a  steam 
engine  under  cii'cumstances  of  wanton,  malicious  and  out- 
presented  by  the  instructions  iiad  never  before  l)een  determined  in  Maine,  but 
that  they  were  in  entire  accordance  with  the  weight  of  judicial  authority  in  this 
country.  The  following  cases  were  cited:— Day  v.  Woodworth,  13  How.  371; 
Tillotson  V.  Cheethaiu,  3"  Johns.  56;  Taylor  v.  Church,  4  Seld.  452;  Hopkins  v. 
Atlantic  &  St.  Lawrence  R.  R.  Co.  36  N."  H.  10;  Huntlv  v.  Bacon,  15  Conn.  267; 
Pastorius  v.  Fisher,  1  Rawle,  27 ;  Porter  v.  Seller,  23  P"enn.  424 ;  Stout  v.  Prall, 
Coxe  N.  J.  R.  71);  reaffirmed  in  Winter  v.  Peterson,  4  Zab.  524;  McNamara  v. 
King,  2  Gilman,  432;  Deane  v.  Blackwell,  18  111.  336;  Fleet  v.  Hollenkemp,  13 
B.  Mon.  219;  Kountz  v.  Brown,  16  B.  Mon.  577;  Louder  v.  Hinson,  4  Jones, 
369;  Tullidge  v.  Wade,  3  Wilson,  18.  Rice,  .J.,  dissenting,  said:  ''In  actions 
of  tcrt,  damages  are  given  as  a  compensation  for  injuries  received,  and  should 
be  commensurate  with  those  injuries — no  more,  no  less.  Exemplary,  vindictive, 
or  punitive  damages  are  something  be\'ond,  given  by  way  of  punishment.  This 
rule  of  damages  is  presented  in  the  ruling  in  this  case  distinctly  and  without  any 
ambiguity.  Hitherto  it  has  not  been  adopted  in  this  State.  Deeming  it  unsound 
and  pernicious  in  principle,  I  cannot  concur  in  engrafting  it  upon  our  law,  nor 
in  adopting  it  as  a  rule  of  practice  in  our  courts.  Under  the  rule  as  stated  in 
this  case,  a  defendant  may  be  required  to  make  full  compensation  to  the  injured 
party,  be  punished  by  fine  without  legal  limitation  by  a  jury  for  private  benefit, 
and  then  be  liable  to  indictment  by  a  grand  jury  for  a  public  wrong,  and  pun- 
ished by  the  court  to  the  extent  of  the  law,  and  all  for  the  same  transaction. 
The  soundness  of  the  rule  has  been  much  discussed  ^^?v  and  con.  by  courts  and 
jurists.  The  authorities  upon  the  subject  are  numerous.  To  collate  or  analyze 
them  would  give  no  additional  light.  A  statement  of  the  proposition  itself  is, 
to  a  legal  mind,  on  principle,  a  conclusive  argument  against  it.  It  stands  only 
on  contested  and  doubtful  authority.  But  no  number  of  cases  or  weight  of 
authority  can,  in  my  judgment,  relieve  the  rule  of  its  inconsistency  with  the 
universally  recognized  principles  of  natural  justice,  nor  free  it  from  the  smack  of 
barbarism."  See  Sedgwick  on  Damages,  6th  ed.  p.  566,  note,  where  the  doctrine 
of  exemplary  damages  is  ably  discussed. 
'  Porter  v.  Seiler,  23  Penn.  St.  R.  424. 


§  281.    MALICIOUS   INTENT  AS  AFFECTING   THE   DAMAGES.       253 

rageous  conduct  on  tlie  part  of  tlie  defendant,  the  plaintiff 
was  awarded  exemplary  damages.^  In  Mississippi,  it  has 
been  held,  that  to  justify  a  verdict  for  such  damages,  there 
must  have  been  either  malice,  violence,  fraud,  or  oppression.^ 

§  281.  We  need  scarcely  say  that  there  is  a  distinction 
between  malice  in  law,  which  is  a  mere  inference  or  pre- 
sumption of  law,  from  an  act  unlawful  in  itself  injurious  to 
another,  and.  express  or  actual  malice,  which  relates  to  the 
actual  state  or  condition  of  mind  of  the  person  who  did  the 
act,  and  which  is  a  question  of  fact  upon  the  circumstances  of 
each  particular  case.  To  constitute  express,  or  actual  malice, 
it  is  not  necessary  that  the  act  should  proceed  from  hatred  or 
ill-will  to  the  person  injured,  but  it  may  be  inferred,  from  a 
mischievous  intention  of  the  mind,  or  from  inexcusable  reck- 
lessness.^ An  act  done  with  the  intention  of  annoying,  har- 
assing or  teasing,  after  due  warning,  is  malicious,  in  the  sense 
in  which  that  term  is  understood  in  the  law  and  as  it  is 
applied  to  the  question  of  damages.  A  consideration  of  the 
circumstances  under  which  a  wrons;  was  committed  neces- 
sarily  includes  the  motive  or  intention  of  the  party  charged. 
There  is  an  obvious  distinction  between  an  injury  proceeding 
from  an  act  done  with  no  harmful  intent,  and  an  injury, 
though  greater  than  was  intended,  evincing  a  mischievous 
disposition.^  In  an  action  for  assault  and  battery,  it  appeared 
that  the  defendant  was  the  keeper  of  a  liquor  store  in  New 
York ;  that  on  a  Sunday  afternoon  he  invited  the  plaintiff  to 
come  to  his  store  and  take  a  glass  of  wine  ;  that  the  plaintiff  ac- 
cepted the  invitation,  and  while  they  were  at  the  store  the 
defendant  and  other  persons  who  were  there  commenced 
playing  at  a  game.  The  game  consisted  in  blowing  a  sharp 
piece  of  steel,  with  feathers  attached  to  it,  through  a  tube  at 

'  Bait.  &c.  R.  R.  Co.  V.  Breinig,  25  Md.  378. 

=  New  Orleans  &c.  R.  R.  Co.  v.  Statham,  42  Miss.  607. 

'  2  Stark.  Ev.  074 ;  Rex  v.  Harvey,  2  B.  &  C.  2C8 ;  Duncan  v.  Thwaites,  3  lb. 
585;  Wiggin  v.  Coffin,  3  Story,  7;  Com.  v.  York,  9  Mete.  104;  Etchberry  v. 
Levielle,  2  Hilt.  40. 

■"  Ante,  §§  14,  et  seq. 


254   .  ASSAULT  AND  BATTERY.  §  281. 

a  target.  When  the  defendant  blew  the  j^iece  of  steel  at  the 
target,  the  plaintiff  went  up  to  count  the  game  ;  whereupon 
the  defendant  blew  through,  tlie  tube  at  him,  and  tlie  instru- 
ment or  arrow  struck  him  in  the  back  collar  of  his  coat. 
The  defendant  was  then  told  by  a  bystander  that  he  ought 
not  to  do  it ;  that  it  was  dangerous ;  that  if  the  plaintiff 
should  turn  kis  head  it  might  hurt  him.  But  not  keeding 
this  warning,  he  blew  the  arrow  at  the  plaintiff  again  and 
struck  kim  in  tke  back.  The  plaintiff  then  went  up  to  tke 
defendant  in  a  menacing  manner  and  raised  kis  fist  to  strike 
kim.  Some  kard  words  passed  between  tkem,  tke  plaintiff 
appearing  to  be  in  a  passion,  tke  defendant  laugking  and  in 
good  nature  and  not  excited.  A  few  minutes  after,  tke 
plaintiff  being  near  tke  target,  tke  defendant  skot  at  kim 
again,  and  as  the  plaintiff  stepped  back  from  tke  target  and 
turned  kis  kead,  tke  defendant  j)ointed  tke  tube  at  kim,  blew 
tkrougk  it  again,  and  tke  instrument  struck  tke  plaintiff  in 
tke  eye.  Tke  bystanders  gatkered  around,  tke  plaintiff  drew 
tke  instrument  from  kis  eye,  and  as  ke  did  so  tke  blood  flowed 
and  ke  seemed  to  be  in  muck  pain.  Inflammation  ensued, 
and  ke  suffered  a  good  deal  for  four  and  a  kalf  montks,  being 
confined  to  kis  bed  during  tke  most  of  tkat  time,  and  be- 
coming blind  in  tke  eye.  His  pkysician's  and  otker  bills 
amounted  $912.  He  was  a  builder.  He  kad  to  abandon 
kis  work  in  consequence  of  tke  injury,  and  had  not  been  able 
up  to  the  time  of  the  trial — seven  months  afterward — to  do 
any  business.  At  the  trial,  the  judge  was  requested  to  in- 
struct the  jury,  that  as  the  plaintiff  was  present  in  a  public 
tippling  kouse  engaged  in  playing  tke  game  out  of  which  the 
injury  arose,  which  was  in  violation  of  law,  ke  could  not  re- 
cover damages  for  tke  injury,  or,  as  ke  was  engaged  in  an 
amusement  in  an  unlawful  manner,  tkat  tkat  migkt  be  taken 
into  consideration  in  mitio-ation  of  damao;es,  wkick  instruc- 
tion  tke  judge  refused.  He  ckarged  tke  jury  tkat  if  the 
injury  was  the  result  purely  of  an  accident,  then  the  defend- 
ant was  liable  only  for  the  actual  damages,  but  that  if  the 
defendant  acted  with  the  intention  of  annoying,  karassing  or 


§  282.  DAMAGES   FOR  ASSAULT   UPON   CHILD,    ETC.  255 

teasing  the  plaintiff  after  warning,  then  tlie  rule  would  be 
different,  even  though  the  actual  injury  was  unintentional. 
A  verdict  having  been  found  for  the  plaintiff  for  $5,000,  the 
court  of  review  refused  to  disturb  it.^  * 

43.  Damages  for  assault  u])on  child  or  servant. 

§  282.  In  an  action  for  assault  and  battery  upon  the 
child  or  servant  of  the  plaintiff,  the  suit  being  for  the  loss 
or  service,  the  actual  loss,  and  if  sickness  resulted,  the  ex- 
penses attending  such  sickness,  can  alone  be  recovered,  not- 
withstanding the  person  assaulted  was  a  female,  and  the  as- 

'  Etchberry  v.  Levielle,  3  Hilton,  40.     See  Hyatt  v.  Adams,  16  Mich.  180. 

*  In  Etchberry  v.  Levielle,  swpra,  the  court,  in  affirming  the  judgment,  said  : 
"  The  defendant  may  not  have  intended  to  put  out  the  plaintiff's  eye,  or  to  do 
him  any  serious  bodily  harm.     But  he  wantonly  and  recklessly  persisted  in  shoot- 
ing or  blowing  at  him  a  sharp  pointed  instrument,  impelled,  according  to  the 
testimony,  with  great  directness  and  force;  an  act  highly  dangerous,  deliberately 
done,  exhibiting  a  reckless  disregard  of  the  safety  of  others,  and  a  wanton  and 
malicious  spirit  of  mischief.     He  repeated  the  act  after  he  was  urged  to  desist 
and  warned  that  it  was  dangerous;  and  when  the  plaintiff,  provoked  by  the 
repetition  of  the  assault,  threatened  to  strike  him,  be  persisted,  did  it  again,  and 
desisted  only  when  the  dart  or  arrow  lodged  in  the  plaintiff's  eye.     That  this 
was  acting  maliciously,  in  the  sense  in  which  the  term  is  understood  in  the  law, 
does  not,  in  my  judgment,  admit  of  doubt.     It  evinced  a  deliberate  intention  to 
vex,   injure  and  annoy,   regardless  of    consequences.     The  consequences  were 
probably  more  serious  than  was  intended,  but  the  malicious  act  consisted  iu 
persistently  doing,  against  all  warning  and  remonstrance,  what  involved  the 
possibility  of  such  a  consequence.     The  object  uf  punitory  or  exemplary  damages 
is  that  they  may  operate  as  a  punishment  and  restraint  to  the  offender,  and  as  a 
benefit  and  example  to  the  community,  and  certainly  conduct  like  this  comes 
Avithin  the  spirit  and  intent  of  this  principle  of  the  law  of  damages."     In  an 
action  for  assault  and  battery,  the  defendant  justified  that  at  the  request  of  the 
plaintiff's  mother  he  went  to  the  house  where  the  plaintiff  and  her  mother  re- 
sided in  order  to  remove  the  plaintiff''s  mother,  who  was  infirm,  thei'efrom,  and 
that  he  used  no  more  force  than  was  necessary  to  effect  such  removal.     The  judge 
instructed  the  jury  that  the  animus  of  the  defendant  ought  to  have  a  great  effect 
on  the  damages;  that  if  he  acted  honestly,  solely  with  a  view  to  the  welfare  of 
the  plaintiff''s  mother,  the  damages  ought  to  be  less  than  if  he  acted  with  wrong- 
motives;  that  on  the  question  of  animus  there  was  evidence  that  the  defendant, 
shortly  after  the  removal,  procured  from  the  plaintiff's  mother  a  will,  giving  him 
all  the  property  absolutely  unconnected  with  any  trust,  and  that  it  was  for  the 
jury  to  say  whether  the  removal  was  made  with  a  design  to  have  the  will  ex- 
ecuted and  from  improper  motives,   or  whether   his  motives    were  good  and 
charitable.     It  was  held  that  this  instruction  was  erroneous,  the  effect  of  it  being 
necessarily  to  influence  the  jury  to  find  upon  a  matter  not  in  evidence;  that  the 
removal  was  from  improper  motives,  and  upon  such  a  finding,  to  lead  the  jury  to 
enhance  the  damages,  under  the  charge  that  the  damages  should  be  greater  if  the 
animus  was  improper  tlian  if  it  were  good  and  charitable  (Grossman  v.  Harrison, 
4  Robertson,  38).     In  Louisiana,  wliere  in  an  action  for  assault  and  battery  it 
appeared  that  the  plaintiff,  a  free  woman  of  color,  had  been  whipped  by  an 
officer  under  an  hon<;st  mistake  as  to  her  identity,  it  was  held  that  she  was  not 
entitled  to  exemplary  damages  (Perrine  v.  Blanchard,  15  La.  An.  133). 


256  ASSAULT    AND    BATTERY.  §  282. 

sault  was  of  an  indecent  character,  and  very  aggravated.* 
In  such  case,  the  female  can  herself  maintain  an  action  in 
which  she  will  be  entitled  to  exemplary  damages.^  But  in 
Edmondson  v.  Machell  ^  trespass  was  brought  by  an  aunt  for 
assaulting  and  beating  her  niece,  'per  quod,  &c. ;  and,  at  the 
same  time,  another  action  was  brought  by  the  niece  for  the 
same  assault.  On  the  trial,  the  counsel  for  the  aunt  with- 
drew the  record,  in  the  latter  case,  and  declared  their  inten- 
tion not  to  try  it.  The  defendant  insisted  that  the  jury 
could  only  give  damages  for  the  loss  of  service.  The  court 
ruled  otherwise,  and  placed  the  case  on  a  footing  with  the 
action  for  seduction.  On  a  motion  for  a  new  trial,  it  was  ad- 
mitted that  the  damages  were  not  excessive  if  the  jury  had 
a  rio^ht  to  take  both  actions  into  consideration ;  and  the 
court,  on  the  niece  stipulating  not  to  proceed  in  her  action, 
]-efused  to  grant  a  new  trial.  It  is  obvious,  from  the  report 
of  the  case,  that  without  this  stipulation,  the  result  would 
have  been  different.  In  a  recent  action  for  assault  and  bat- 
tery in  Missouri,  alleged  to  have  been  committed  upon  the 
plaintiffs  minor  son,  the  judge,  at  the  trial,  charged  the  jury 
that,  if  they  found  for  the  plaintiff,  they  should  allow  such 
damages  as  would  compensate  him  for  his  loss  of  time, 
and  for  any  damage  he  might  have   suffered,  permanent  or 


'  Whitney  \.  Hitchcock,  4  Denio,  461.  '  2  Term  R.  4. 

*  But  in  an  action  on  the  case  for  seduction,  exemplary  damages  may  be  re- 
covered (Sedgw.  on  Dam.  6th  ed.  p.  680).  As  observed  I)y  the  court,  in  Wliit- 
ney  v.  Hitchcock,  supra,  the  action  for  seduction  is  peculiar,  and  would  seem  to 
form  an  exception  to  the  rule  that  damages  only  can  be  recovered  where  the  ac- 
tion is  for  loss  of  service  consequential  upon  a  direct  injuiy.  But  there,  the 
party  directly  injured  cannot  sustain  an  action,  and  the  rule  of  damages  has  al- 
ways been  considered  as  founded  upon  special  reasons  only  applicable  to  that  case. 
Akerley  v.  Haines,  2  Caines  R.  292,  was  an  action  of  trespass  for  debauching 
and  getting  with  child  the  daughter  of  the  plaintiff.  The  defendant's  counsel 
maintained  that,  if  the  daughter  was  of  bad  reputation,  previous  to  the  defend- 
ant's connection  with  her,  the  present  action  would  not  lie.  The  judge,  before 
whom  the  case  was  tried,  instructed  the  jury  that,  "though  they  might  believe 
in  the  previous  want  of  chastity,  they  ought,  nevertheless,  to  find  a  verdict  for 
the  plaintiff,  but  assess  damages  only  for  the  loss  of  service  and  expenses  of  ly- 
ing in,  and  nothing  for  the  loss  of  reputation."  The  Supreme  Court,  in  refusing 
a  new  trial,  said:  "The  direction  of  the  judge  was  right.  The  daughter  not 
being  virtuous,  is  no  reason  why  her  father,  unless  he  connived  at  and  knew  of 
her  criminal  intercourse,  should  not  recover  for  the  injury  done  to  him  by  the 
loss  of  her  service  and  the  expenses  of  her  confinement.'' 


§§  283,  284.  DAMAGES  AFTER  CONVICTION.  257 

otherwise,  and  tor  the  time  aiul  trouble  in  taking  care  <A'  iiis 
son  ;  and,  in  addition  thereto,  they  miglit  allow  such  further 
sum,  for  exemplary  damages,  as  they  might  think  the  circum- 
stances and  facts  in  evidence  "warranted.  And  a  verdict 
having  been  found  for  the  i)laintitf,  it  was  sustained  on  ap- 
peal.^ 

§  283.  Where  in  an  action  for  l>rutal  violence  to  a  female, 
it  is  proved  that  her  resistance  to  sexual  intercourse  was  over- 
come, and  her  consent  thereto  ultimately  ol)tained,  the  sexual 
intercourse  cannot  be  taken  as  the  basis  of  damages,  unless 
the  consent  was  obtained  by  the  violence,  in  which  case,  be- 
ing a  part  of  the  assault,  it  is  a  ground  for  exemplary  dam- 
ages. 

44.  Damages  after  conviction  for  pahliG  offense. 

§  284.  In  several,  if  not  in  most  of  the  States,  the  ftxct 
that  the  defendant  has  already  been  convicted  and  fined,  in  a 
criminal  prosecution,  for  the  same  offense,  will  not  affect  the 
plaintiff's  right  to  recover  exemplary  damages.^  *  But  in 
Indiana,  vindictive  damages  are  not  allowable  in  cases  of 
malicious  trespass,  the  act  being  punishable  criminally.'* 


'  Klingman  v.  Holmes,  54  Mo.  304;  disapproving  Whitney  v.  Hitchcock, 
supra. 

"  Cook  V.  Ellis,  0  Hill,  400;  Pliillips  v.  Kelly,  29  Ala.  028;  Wolfl'v.  Cohen, 
8  Rich.  S.  C.  K.  144;  Kol)erts  v.  Mason.  10  Ohio,  N.  S.  277;  JelTersou  v.  Adams, 
4  llari-ing.  321;  Corwin  v.  Walton,  18  Mo.  71;  Wilson  v.  Middletou,  2  Cal.  54. 

'  Butler  V.  Mercer,  14  Ind.  479. 

*  In  Cook  V.  Ellis,  svpra,  wjiich  was  an  action  for  an  assault  upon  the  plaint- 
iff with  intent  to  have  carnid  connection  witii  iier,  it  was  not  denied  that  there 
were  circumstances  in  proof  wliicii  authorized  tlie  jury  to  give  exemplary  dam- 
ages, had  not  the  defcMidant  been  convicted  and  lined  $250,  for  the  same  assault, 
Avhich  he  had  paid.  The  court  said  : — "  In  vindictive  actions  (and  this  is  agreed 
to  come  within  that  class),  jurors  are  always  authorized  to  give  exemplary  dam- 
ages where  tiie  injury  is  attended  witl)  circumstances  of  aggravation ;  and  tlie 
rule  is  laid  down  witiiout  the  (pialilication,  that  we  are  to  regard  eitiier  the  pos- 
Hil)le  or  the  actual  punisiimcnt  of  tlie  defendant  by  indictment  and  conviction 
at  the  suit  of  the  people.  That  the  criminal  suit  is  not  a  bar  to  tlie  civil,  and 
that  no  court  will  drive  the  prosecutor  to  elect  between  them,  if  the  former  be 
by  indictment,  is  entirely  settled.  He  may  proceed  by  both  at  the  same  time. 
Nor  will  the  court  even  .stay  proceedings  in  the  civil  action,  to  govern  themselves 
by  the  event  of  a  pending  criminal  prosecution.  We  concede  that  smart-money, 
allowed  by  a  jury,  and  a  line  im[)osed  at  the  suit  of  the  jieople,  de))end  on  the 
same  principle.  IJoth  are  jienal,  and  intended  to  deter  others  from  the  commis- 
sion of  the  like  crime.  The  former,  however,  becomes  incidentally  compensa- 
Vor..  I.— 17 


258  ASSAULT    AND    BATTERY.  §  285. 

45.  Damages  accruing  after  cornmencement  of  action. 

§  285.  The  plaintiff  is  entitled  to  sucli  damages  as  are 
the  necessary  or  usual  consequence  of  the  injuries  received, 
although  they  accrued  after  the  commencement  of  the  suit.^ 
Accordingly,  where  the  leg  of  a  slave  was  broken  by  another, 
it  was  held  that  it  might  be  proved  that  the  slave  died  after 
the  action  was  commenced,  or  that  the  injury  proved  greater 
by  lapse  of  time,  such  consequences  being  the  immediate  re- 
sults of  the  trespass.^  So,  likewise,  in  an  action,  by  a  master, 
for  a  personal  injury  to  his  servant,  it  was  held  that  the 
plaintiff  was  entitled  to  recover,  not  only  for  the  loss  of  the 
services  of  his  servant,  up  to  the  period  of  commencing  the 
action,  but  if  the  servant  continued  disabled,  down  to  the 
time  when  it  appeared,  in  the  evidence,  that  the  disability 
might  be  expected  to  cease.^ 


tory  for  damages,  and,  at  the  same  time,  answers  the  purposes  of  punishment. 
The  recoTery  of  such  damages  ought  not  to  be  mfide  dependent  on  what  has 
been  done  by  way  of  criminal  prosecution,  any  more  than  on  what  may  be  done. 
Nor  are  we  prepared  to  concede  that  either  a  fine,  or  imprisonment,  or  both, 
should  be  received  in  evidence  to  mitigate  damages.  True,  if  excluded,  a 
double  punishment  may  sometimes  ensue,  but  the  preventive  lies  with  the 
criminal  rather  than  the  civil  courts.  The  former  have  ample  power,  if  they 
choose  to  exert  it,  of  preventing  any  great  injury  from  excess  of  punishment. 
In  a  proper  case,  if  the  party  aggrieved  will  not  release  his  private  injury,  or 
stipulate  to  waive  a  suit  for  it,  or  at  least  to  waive  all  claim  for  smart  money, 
the  courts  may,  after  conviction,  either  impose  a  tine  merely  nominal,  or  stay 
proceedings  till  a  trial  shall  be  had  in  the  civil  action,  and  govern  themselves 
accordingly,  in  the  final  infliction  of  punishment.  This,  or  something  equivalent, 
has  often  been  done.  The  more  usual  case  in  England  is,  where  the  party  comes 
as  the  principal  actor  in  the  prosecution,  by  way  of  applying  for  a  criminal  in- 
formation. The  court  will  then  make  it  a  condition  that  he  shall  waive  his 
right  of  action.  Indeed,  so  common  has  this  become,  that  the  very  application 
by  the  party  is  said  to  be  considered,  as  an  implied  stipulation,  not  to  bring  a 
private  suit.  This  will  therefore  be  stayed.  And  even  where  he  proceeds  by 
indictment,  the  court  often,  in  effect,  turn  over  the  whole  case  to  be  disposed  of 
by  action,  in  the  method  before  ment  oned.  The  more  usual  course  is  to  stay 
proceedings  on  the  criminal  side,  till  those  on  the  civil  side  are  at  an  end.  This 
is  not  done  with  us,  till  after  conviction ;  and  such  is,  no  doubt,  the  better 
practice  "  (citing  Jones  v.  Clay,  1  Bos.  &  Pul.  191 ;  Jacks  v.  Bell,  3  Carr.  & 
Payne,  316;  Cady  v.  Bariow,  1  Man.  &  Ryl.  275;  Rex  v.  Sparrow,  2  T.  R.  198; 
Rex  V.  Fielding,  2  Burr.  654;  s.  c.  2  Kenyon's  R.  386;  Com.  v.  Bliss,  1  Mass. 
32;  Com.  v.  Elliot,  2  Id.  372;  The  People  v.  Genl.  Sess.  of  Genesee,  13  Johns.  85). 

■  Burchard  v.  Booth,  4  Wis.  67;  ante,  §§  22,  112,  278. 

-  Johnson  v.  Perry,  2  Humph.  569. 

'  Hodsoll  V.  Stallebrass,  11  Ad.  &  E.  301. 


§  286.  INADEQUATE   OR  EXCESSIVE   DAMAGES.  259 

46.  Inadequate  or  excessive  damages. 

§  286.  The  damages  must  have  been  clearly  inadequate 
or  excessive  to  furnish  a  ground  for  a  new  trial.  Six  cents 
damages  for  a  violent  blow  would  usually  be  deemed  grossly 
inadequate.  But  if  the  parties  were  engaged  in  a  broil  from 
which  very  little  injury  resulted  to  either,  such  a  verdict 
would  not  be  disturbed.^  The  finding,  however,  of  trivial 
damages  for  breaches  of  the  peace,  which  would  lead  the 
ill  disposed  to  consider  an  assault  a  thing  that  might  be  com- 
mitted witli  impunity,  should  not  be  encouraged.  The  fol- 
lowing instruction  was  held  not  exceptionable  : — That  in  as- 
sessing the  damages,  it  was  the  right  and  duty  of  the  jury 
"  to  consider  the  effect  which  the  finding  of  light  or  trivial 
damages,  in  actions  for  breaches  of  the  peace,  would  have  to 
encourage  a  disregard  of  the  laws  and  disturbances  of  the 
public  peace."  ^  A  much  higher  verdict  than  $85,  for  a  vio- 
lent beating  and  wounding  with  an  axe,  would  not  be  deemed 
excessive,  especially  where  it  was  proved  that  the  defendant 
was  amply  able  to  pay.^  Where  a  landlord  committed  an 
aggravated  assault  upon  one  of  his  guests,  a  verdict  for  $600 
was  sustained.^  But  where  an  action  was  brought  by  a 
servant,  for  an  assault  alleged  to  have  been  committed  upon 
him  by  his  master,  and  it  appeared  that  the  master  had  given 
the  servant  a  slight  blow,  for  impertinent  behavior,  where- 
upon the  servant  turned  upon  his  master  and  gave  him  a 
violent  thrashing,  and  then  brought  an  action  for  the  original 
assault  upon  himself,  and  recovered  40^.  damages,  the  court 
granted  a  new  trial.^  And  in  an  action  against  a  railroad 
company,  for  the  forcible  ejection  of  the  plaintifi^  from  a  street 
car,  by  the  conductor,  there  being  no  evidence  of  malice  on 
the  part  of  the  conductor,  $750  damages  were  held  exces- 
sive.*^    And  the  same  was  held  as  to  a  verdict  of  $2,500,  in 


*  Silverman  v.  Foreman,  3  E.  D.  Smith,  322. 

"  Beach  v.  Hancock,  7  Fost.  223.  ''  Gore  v.  Chadwick,  6  Dana,  477. 

*  Kelsey  v.  Henry,  49  111.  488.  "  Jones  v.  Sparrow,  5  Term  R.  257. 

*  Turner  v.  North  Beach  R.  R.  Co.  34  Cal.  594. 


260  ASSAXTLT    AND    BATTEEY.  §§  287,  288. 

an  action  for  an  assault  on  a  married  woman,  with,  an  at- 
tempt to  commit  rape,  it  appearing  that  the  j)laintiff  had  re- 
ceived no  actual  injury.^ 

47.   Costs. 

§  287.  A  knowledge  by  the  jury  of  the  costs  which  will 
follow  their  verdict,  is  sometimes  important  to  enable  them 
to  render  a  proper  measure  of  justice.  In  Elliott  v.  Brown,^ 
the  jury  asked  to  be  instructed  as  to  what  amount  of  dam- 
ages would  carry  costs,  but  the  instruction  was  not  given. 
When  the  case  came  before  the  Supreme  Court  from  the 
New  York  Common  Pleas  where  it  was  tried,  Chief  Justice 
Savage  said :  "  It  is  the  duty  of  the  jury  to  ascertain  what 
damages  the  plaintiff  has  sustained,  and  also  how  much  the 
defendant  ought  to  be  punished ;  and  if  the  jury  consider 
the  costs  as  part  of  the  amouut  which  the  defendant  should 
pay,  and  wish  to  give  no  greater  damages  than  barely 
enough  to  carry  costs,  or  to  give  such  a  sum  as  will  not  carry 
costs,  they  have  a  right  to  do  so.  I  think  therefore,  it  would 
have  been  j)roper  to  have  given  the  jury  the  information 
they  wanted."  In  Nolton  v.  Moses,^  Willard,  J.,  said :  "  It 
is  common  experience,  to  apprise  the  jury  as  to  the  effect  of 
tbeir  verdict  upon  the  parties  in  respect  to  the  question  of 
costs ;  and  the  practice  has  been  expressly  and  repeatedly 
affirmed."  And  in  Waffle  v.  Dillenbeck,^  the  judge  refused 
to  instruct  the  jury,  that  in  arriving  at  the  amount  of  their 
verdict,  they  had  nothing  to  do  with  the  question  of  costs, 
but  gave  them  full  and  minute  information,  as  to  what  costs 
a  verdict  for  the  plaintiff  would  carry. 

§  288.  In  New  Hampshire,  it  has  been  held  that  where 
in  an  action  for  assault  and  battery,  several  defendants 
prevail  by  the  proof  or  disproof  of  substantially  the  same 
facts,  the  mere  circumstance  that  they  have  pleaded  severally, 


'  Timmons  v.  Broyles,  47  111.  92.  -  2  Wend.  497. 

°  3  Barb.  31.  *  39  Barb.  123. 


§289.  VERDICT.  201 

will  not  entitle  them  as  of  course,  to  more  than  one  bill  of 
costs.^  In  Massachusetts,  a  different  rule  is  said  to  have 
been  established ;  ^  but  subject  to  exceptions.'^  In  New 
York,  it  has  been  held  that  where  two  defendants  are  sued 
jointly  for  assault  and  battery,  and,  without  any  improper 
motive,  have  appeared  and  defended  by  different  attorneys, 
and  each  defendant  has  pleaded  separately,  upon  the  acquittal 
of  both,  each  is  entitled  to  full  costs.^  In  the  same  State, 
in  an  action  for  assault  and  battery  against  two,  a  verdict  hav- 
ing been  rendered  against  one  of  the  defendants,  and  in  favor 
of  the  other,  one  perfected  judgment  against  the  plaintiff 
for  costs,  including  the  costs  of  the  judgment,  and  the  other 
defendant  made  a  bill  of  exceptions,  the  judgment  was 
allowed  to  stand  on  condition  that  the  costs  of  entering  it 
up  should  be  deducted,  though  the  cause  was  still  pending 
on  the  bill  of  exceptions.^  ^ 

48.    Verdict. 
§  289.  When  in  an  action  for  assault  and  battery  there  is 

'  Prescott  V.  Bartlett,  43  N.  Hamp.  298. 

^  Fales  V.  Stone,  9  Mete.  316;  Davis  v.  Hastings,  8  Cush.  314;  Mason  v. 
Waite,  1  Pick.  458;  West  v.  Brock,  3  Pick.  303. 

=  Peabody  v.  Minot,  24  Pick.  334;  Miller  v.  Lincoln,  6  Gray,  556. 

'  Tenbroeck  v,  Paige,  6  Hill,  267. 

'  Webb  V,  Bulger,  4  Hill,  588;  ante,  §  121. 

*  In  England,  statutes  limiting  the  costs  for  the  purpose  of  preventing  trifling 
and  malicious  actions  were  passed  in  the  reigns  of  Elizabeth,  James  First,  and 
Charles  Second.  The  principal  statute  vpas  passed  in  the  reign  of  Charles 
Second.  It  provided  that  ''In  all  actions  of  trespass,  assault  and  battery,  and 
other  personal  actions,  wherein  the  judge  at  the  trial  of  the  cause,  shall  not  find 
and  certify  under  his  hand,  upon  the  back  of  the  record,  that  an  assault  and 
battery  were  sufficiently  proved  by  the  plaintiff  against  the  defendant,  or  that 
the  freehold  or  title  of  the  land  mentioned  in  the  plaintiff's  declaration  was 
chietiy  in  question,  the  plaintitl',  in  case  the  jury  shall  find  the  damages  to  be 
under  the  value  of  forty  shillings,  shall  not  recover  or  obtain  more  costs  of  suit 
than  the  damages  so  found  shall  amount  unto.  In  cases  of  assault  and  battery 
and  trespass,  the  certificate  of  the  judge  would  regulate  the  costs.  In  all  other 
personal  actions,  the  verdict  alone  regulated  them.  The  New  York  statute  was 
formerly  as  follows :  "If  the  ])laintiff,  in  an  action  for  assault  and  battery  or  false 
imprisonment,  or  for  slanderous  words  or  for  libel,  brought  in  the  Supreme 
Court,  recover  fifty  dollars  or  less,  such  plaintifl"  shall  recover  no  more  costs  than 
damages."  The  revisers,  in  their  notes,  say  that  by  this  provision  it  was  hoped 
a  fruitful  source  of  litigation  might  be  destroyed.  The  New  York  Code,  §  304, 
enlarges  this  class,  adding  other  personal  actions,  and  granting  full  costs  when 
the  plaintiff  recovers  fifty  dollars  or  over. 


262  ASSAULT    AND    BATTERY.  §§  290,  291. 

a  plea  of  not  guilty,  the  jury  are  not  at  liberty  to  take  into 
consideration  the  circumstances  with  the  view  to  reduce  the 
verdict  below  the  amount  of  damages  actually  sustained,  if 
those  circumstances  could  have  been  pleaded.^  Nor  will  the 
court  enter  a  verdict  for  the  defendant  on  the  plea  of  the 
general  issue  when  he  has  obtained  the  verdict  on  a  plea  of 
son  assault  demesne^  * 

§  290.  If  the  assault  and  battery  be  committed  in  pur- 
suance of  a  common  intent,  or  where  all  are  2)i*esent,  aiding, 
abetting,  or  encouraging,  or  have  previously  counseled  the 
violence,  a  joint  verdict  against  all  is  proper.^  To  a  declara- 
tion, charging  a  joint  assault,  the  defendants  pleaded  jointly 
not  guilty.  The  judge  observing  this,  and  not  knowing 
whether  it  was  intentional  or  through  inadvertence,  inquired 
of  the  counsel  what  the  plea  was,  and  was  informed  that  it 
was  intended  to  meet  the  declaration  exactly.  The  de- 
fendants then  claimed  that  if  the  jury  found  one  defendant 
guilty,  and  the  other  not  guilty,  they  should  render  a  verdict 
accordingly,  which  was  not  controverted  on  the  part  of  the 
plaintiff.  The  court,  however,  chose  to  treat  the  case  as  the 
defendants  had  stated  their  plea  treated  it,  and  told  the  jury 
that  if  they  found  the  facts  to  be  proved  as  stated  in  the 
plaintiff's  declaration,  they  must  return  a  verdict  against  the 
defendants.  It  was  held  that  as  the  declaration  alleged  a 
joint  assault  only,  and  the  plea  was  expressly  intended  to 
meet  that  allegation,  and  there  was  no  claim  that  one  could  be 
subjected  for  an  assault  by  the  other  unless  they  acted  in 
concert,  the  defendants  had  no  ground  of  complaint  against 
the  charge.* 

S  291.  If  the  action  be  a^rainst  two,  damao;es  cannot  be 
severed,  though  the  assault  be  proved  to  have  been  com- 

'  Watson  V.  Christie,  3  B.  «&  P.  324. 

=  Mullins  V.  Scott,  5  Bing.  N.  C.  423. 

=  Southwick  V.  Ward,  7  Jones'  Law,  N.  C.  64;  ante,  §§  23,  212. 

*  Brown  v.  Wheeler,  18  Conn.  199. 

*  Wliere  under  a  plea  of  not  guilty  and  son  assault  demesne  to  a  charge  for 
assault  and  battery  tliere  is  a  verdict  of  guilty,  the  justification  is  necessarily 
negatived  (Pleasants  v.  Heard,  15  Ark.  403). 


§  292.  VERDICT.  263 

mitted  by  one  defendant  with  more  violence  and  more  cir- 
cumstances of  aggravation.^  If  one  of  the  defendants  beat 
the  plaintiff  violently,  and  the  other  a  little,  the  real  injury 
is  the  aggregate  inflicted  by  both,  and  each  is  responsible 
for  the  whole  damage ;  but  the  malice  of  one  defendant  can- 
not be  made  a  ground  of  aggravation  of  damage  against  the 
other,  who  was  altogether  free  from  any  improper  motive.^  * 

§  292.  A  question  as  to  the  form  of  the  verdict  arose  in 
Mitchell  V.  Smith,^  which  was  an  action  ao-ainst  two  for  a 
joint  assault,  in  which  each  defendant  separately  pleaded  the 
general  issue,  and  also  that  the  plaintiff  committed  the  first 
assault  upon  one  of  the  defendants,  who  w^as  the  father  of 
the  other.  The  following  verdict,  notwithstanding  its  gram- 
matical errors,  w^as  held  suflScient :  "  That  as  to  the  first  issue 
the  defendants  are  guilty  of  the  premises  within  charged 
upon  him  in  manner  and  form  as  the  plaintiff  hath  with- 
in alleged,"  and  "  as  to  the  other  issue,  that  defendants, 
of  their  own  wrong,  and  without  any  such  cause  as  they 
within  by  pleading  hath  alleged,  assaulted  the  plaintiff'  in 
manner  and  form  as  he  hath  within  alleged."  f 


'  Brown  V.  Allen,  4  Esp.  158.  But  see  Bevin  v.  Linguard,  1  Brevard,  503; 
ante,  §§  116,  123. 

'  Clark  V.  Newsam,  1  Exch.  131. 

=  4  Md.  403. 

*  Where  an  assault  and  battery  has  been  committed  by  several,  and  a  re- 
covery had  against  one,  such  recovery  will  be  a  bar  to  an  action  for  the  same 
offense  against  the  rest  (Smith  v.  Singleton,  2  McMullan,  184). 

t  In  an  action  for  an  assault  and  battery,  the  jury  agreed  on  a  verdict  for 
the  plaintiff,  and,  in  ascertaining  the  amount  of  damages,  each  juror  marked  a 
sum,  and  the  whole  amount  was  divided  by  twelve,  but  the  jury  did  not  return 
the  quotient  as  the  amount  of  damages,  but  deliberated,  and  returned  a  less 
sum.  Held  no  cause  for  setting  aside  the  verdict  (Cheney  v.  Holgate,  Brayt. 
171).  The  rule,  that  in  cases  of  mayhem  the  court  may  increase  the  damages 
after  ver(\ict  .mper  visum  vulneris,  no  longer  exists  (McCoy  v.  Lemon,  11  Kich. 
Law,  S.  C.  165). 


CHAPTER  II. 

FALSE    IMPRISONMENT. 

1.  False  imprisonment  defined. 

2.  Arrest  bj'  private  person. 

3.  Private  person  causing  arrest. 

4.  Arrest  and  detention  under  military  order. 

5.  Arrest  by  ofRcer  without  warrant. 

6.  Requisites  of  warrant  of  arrest. 

7.  Duty  of  officer  to  communicate  substance  of  warrant. 

8.  Liability  of  officer  in  the  execution  of  process. 

9.  Private  person  aiding  officer  in  arrest. 

10.  What  constitutes  an  arrest. 

11.  Detention  by  officer  of  party  arrested. 

12.  Officer's  return. 

13.  Responsibility  of  magistrates. 

14.  Waiver  of  right  of  action. 

15.  Nature  of  the  action. 

16.  Declaration. 

17.  Plea  justifying  arrest  without  warrant. 

18.  Plea  justifying  arrest  under  process. 

19.  Replication  to  plea  alleging  breach  of  the  peace. 

20.  Rejilication  to  plea  justifying  under  process. 

21.  Evidence. 

22.  Damages. 

1.  False  imprmmment  defined. 

§  293.  False  imprisonment  consists  in  restraining  another 
of  his  liberty  without  sufficient  authority.  Every  confine- 
ment of  the  person  is  an  imprisonment,  whether  it  be  in  a 
common  prison  or  in  a  private  House,  or  in  the  stocks,  or 
even  by  forcibly  detaining  one  in  the  public  streets.^  Where 
a  complaint  alleged  that  the  defendants  illegally,  and  with- 
out warrant,  arrested  the  plaintiff,  and  ])y  force  compelled 
her  to  go  to  a  police  station,  where  they  detained  and  re- 
strained her  of  her  liberty  without  reasonable  cause,  it  was 
held  that  it  stated  a  case  of  false  imprisonment,  and  not  of 
malicious  prosecution,  and  that  the  question  of  probable 
cause  did  not  arise.^     But  arrest  under  legal  authority  does 


'  3  Blk.  Com.  127. 

'  Burns  v.  Erbeu,  1  Robertson,  555;  26  How.  273;  affd.  40  N.  Y.  463. 


§  294.  FALSE   IMPKISONMENT  DEFINED.  265 

not  constitute  false  imprisonment/  although  made  by  vir- 
tue of  a  warrant  issued  irregularly  and  from  bad  motives.^  * 

§  294.  The  offense  may  be  committed  without  actual 
force.  It  is  sufficient  that  one  has  been  deprived  of  his 
liberty  through  reasonable  fear  of  personal  difficulty.'^  A 
person  may  be  restrained  by  words ;  for  he  is  not  obliged  to 
incur  the  risk  of  violence  and  insult  by  resisting  until  actual 
violence  be  used.^  Therefore,  it  is  false  imprisonment  to 
stop  and  prevent  another  by  means  of  threats  from  proceed- 
ing on  the  public  highway,^  Where  a  constable  commands 
another  to  go  with  him,  and  he  does  so,  it  is  constructively 
an  imprisonment,  though  no  actual  force  be  used ;  for  the 
party  addressed  feels  that  he  is  wholly  in  the  power  of  the 
constable.*^  The  plaintiff  appeared  before  the  defendant,  a 
magistrate,  to  answer  the  complaint  of  A.  for  unlawfully 
killing  his  dog.  The  defendant  advised  the  plaintiff  to  set- 
tle the  matter  by  paying  a  sum  of  money,  which  the  plaint- 
iff declined.  The  defendant  then  said  that  he  would  con- 
vict the  plaintiff"  in  a  penalty  under  the  trespass  act,  in  which 
case  he  would  go  to  prison.  The  plaintiff  still  declined  pay- 
ing, and  said  he  would  appeal.  The  defendant'  then  called 
in  a  constable,  and  said,  "  Take  this  man  out  and  see  if  they 
can  settle  the  matter,  and  if  not  bring  him  in  again,  and  I 

'  Coupal  V.  Ward,  106  Mass.  289. 

'  Johnson  v.  Maxou,  23  Mich.  139. 

^  Smith  V.  State,  7  Humph.  43;  Johnson  v.  Tompkins,  1  Baldw.  571. 

'  3  Stark.  Ev.  1448;  Brushaber  v.  Stegemann,  22  Mich.  206. 

''  Bloomer  v.  State,  3  Sneed,  60. 

'  2  Inrft.  589 ;  Bull.  N.  P.  62 ;  Bird  v.  Jones,  7  Q.  B.  742 ;  9  Jur.  870. 

*  The  distinction  between  false  imprisonment  and  malicious  prosecution  is 
that  if  the  imprisonment  is  under  legal  process,  but  tlie  action  has  been  com- 
menced and  carried  on  maliciously,  and  without  probable  cause,  it  is  malicious 
prosecution;  but  that  if  it  is  extrajudicial  without  legal  process,  it  is  false  im- 
prisonment. The  former  is  the  subject  of  an  action  on  the  case ;  while  for  the 
latter  trespass  vi  et  armiH  is  the  remedy  (Johnstone  v.  Sutton,  1  T.  R.  544 ;  Tur- 
pin  V.  Remy,  3  Blackf.  210;  Colter  v.  Lower,  35  Ind.  285).  In  Kansas,  under 
the  code,  where  a  party  has  a  cause  of  action  containing  all  the  elements  of  both 
malicious  prosecution  and  false  imprisonment  as  understood  at  common  law,  he 
is  not  bound,  as  at  common  law,  to  bring  his  suit  for  one  or  the  other,  but  may 
prosecute  for  his  whole  cause  of  action  (Bauer  v.  Clay,  8  Kansas,  580).  False 
imprisonment  may  include  a  battery,  but  the  latter  is  nut  necessarily  included  in 
the  former  (1  Stark.  Ev.  1113). 


206  FALSE   IMPRISONMENT.  §§  295,  296. 

must  proceed  to  commit  liim  under  tlie  act."  The  plaintiff 
then  went  out  with  the  constable,  and  settled  the  matter  by 
paying  a  sum  of  money.  It  was  held  that  this  was  an  as- 
sault and  false  imprisonment,  for  which  trespass  would  lie, 
and  which,  as  no  conviction  had  been  drawn  up,  the  de- 
fendant could  not  justify.^ 

§  295.  But  to  constitute  an  imprisonment  there  must  be 
an  entire  restraint  of  the  will.  It  was  accordingly  held  not 
enough  to  show  that  the  defendant,  at  a  police  office,  stood 
before  the  plaintiff,  and  said,  "  You  cannot  go  away  till  the 
magistrate  comes,"  if  it  appear  that  he  relinquished  that  at- 
titude, and  went  to  another  part  of  the  office  before  the 
plaintiff  had  made  any  attempt  to  depart.^  And  where  part 
of  a  public  footway  on  a  bridge  was  appropriated  for  seats 
to  view  a  regatta,  and  accordingly  separated  from  the  ad- 
joining carriage  road  by  a  temporary  fence,  and  the  plaintiff, 
claiming  a  right  of  way  across  the  part  so  appropriated, 
climbed  over  the  fence,  but  was  prevented  from  proceeding 
by  two  policemen,  who  at  the  same  time  told  him  that  he 
might  go  back  if  he  pleased,  which  the  plaintiff  refused  to 
do,  and  stayed  where  he  was  half  an  hour,  it  was  held  that 
this  did  not  constitute  an  imprisonment.^  So,  likewise, 
where  A.  has  a  chamber  adjoining  the  chamber  of  B.,  with  a 
door  that  opens  into  it,  by  which  there  is  a  passage  for  exit, 
and  A.  has  another  door  w^hich  C.  stops  so  that  A.  cannot  go 
out  by  that,  there  is  no  imprisonment  of  A.  by  C.  (although 
the  latter  is  a  trespasser),  because  A.  may  go  out  by  the 
door  in  the  chamber  of  B.'* 

§  296.  One  who  keeps  the  key  of  a  room,  with  knowl- 
edge that  another  is  imprisoned  therein,  is  a  trespasser.^  But 
a  person  who  places  himself  in  a  situation  to  be  restrained 
of  his  liberty,  cannot  complain  that  he    is  unlawfully  im- 

'  Bridgett  V.  Coyney,  1  M.  &  E.  211. 

"  Cant  V.  Parsons,  6  Car.  &  P.  504.  '  Bird  v.  Jones,  supra. 

"  Wrigbt  V.  Wilson,  1  Ld.  Raym.  739. 

'  Bro.  Abr.  Trespass,  PL  133,  256,  265. 


§  297.  ARREST    BY    PRIVATE    PERSON.  267 

prisoned,  especially  if  he  refuses  to  depart  wlien  lie  inay.^ 
In  an  action  for  false  imprisonment,  in  whicL.  the  plaintiff  al-- 
leged  that  he,  being  an  officer,  went  on  board  of  a  vessel  of  which 
the  defendant  was  master,  in  order  to  arrest  the  steward,  and 
was  carried  to  sea  by  the  defendant,  it  was  argued  that  the 
plaintiff  being  lawfully  on  board  the  ship,  the  carrying  of 
him  away  was  a  trespass,  although  he  had  not  used  due  dili- 
gence in  getting  on  shore.  But  it  Avas  held  that,  as  the 
plaintiff  went  on  board  for  a  particular  purpose,  at  the  very 
time  when  the  ship  was  about  to  leave  the  wharf,  and  as  he 
had,  in  common  with  others,  repeated  notice  that  her  fasts 
were  about  to  be  cast  off,  and  that  persons  not  belonging  to 
the  ship,  should  quit  her ;  and  as  it  had  been  proved  that 
the  plaintiff  was  guilty  of  negligence  in  regard  to  it,  when 
he  had  sufficient  time  to  leave  the  ship  after  performing  his 
duty,  it  followed  that  no  fault  attached  to  the  defendant,  and 
he  could  not  be  charged  as  a  trespasser.^  * 

2.  Arrest  hy  p7'ivate  person. 

§  297.  In  view  of  the  liability,  which  we  have  seen  will 
be  incurred  by  the  unauthorized  depriving  another  of  his 
liberty,  it  becomes  important  to  consider  under  what  circum- 
stances an  individual  can  lawfully  make  an  arrest.  At  com- 
mon law,  a  private  person  is  permitted,  in  certain  cases,  to 
seize  and  detain  another  without  warrant.^  All  who  are 
present  when  a  felony  is  committed,  or  a  dangerous  wound 
given,  are  bound  to  apprehend  the  offender ;  and  a  private 
individual  may  justify  breaking  and  entering  another's 
house  and  imprisoning  him,  to  prevent  him  from  committing 


'  Moses  V.  Dubois,  Dudley's  S.  C.  R.  209. 

'  Spoor  V.  Spooner,  12  Mete.  281.  '  Hawk.  P.  C.  157. 

*  In  the  above  case,  the  plaintifi"  contended  that  the  defendant  being  captain 
of  the  ship,  was,  in  law,  conclusively  liable,  in  his  character  as  master,  for 
trespasses  like  the  one  committed  upon  the  plaintiff.  The  judge  before  whom 
the  cause  was  tried  ruled  that  the  presumption  of  law  w^as,  that  the  captain  was 
liable,  but  that  this  presumption  was  subject  to  be  controlled  by  evidence,  and 
therefore  that  the  question  who  had  actual  control  of  the  ship,  was  a  question  of 
fact  to  be  passed  upon  by  the  jury. 


2G8  FALSE   TMPRISONMEJ!TT.  §  298. 

murder.^  It  is  lawful  to  lay  hands  upon  another  to  preserve 
public  decorum,  as  to  turn  him  out  of  church  and  prevent 
him  from  disturbing  the  congregation,  or  a  funeral  ceremony.^ 
So,  if  a  person  intend  a  right  act,  as  to  assist  a  drunken  man, 
or  prevent  him  from  going  along  the  street  without  help,  and 
a  hurt  should  ensue,  he  would  not  be  answerable.^  But  it 
has  been  held  that  the  continued  wilful  and  malicious  ring- 
ing of  a  door  bell,  is  not,  in  itself,  a  breach  of  the  peace,  so 
as  to  justify  the  arrest  of  a  person  by  a  private  individual.*"^ 

§  298.  In  case  of  an  affray,  any  one  may,  without  a  war- 
rant, restrain  the  offenders  in  order  to  preserve  the  peace.^ 
But  a  private  individual  who  has  witnessed  an  affray,  can- 
not, after  the  affray  has  ceased,  lawfully  give  the  affrayers,  or 
one  or  some  of  them,  into  custody,  unless  the  affrayers  con- 
tinue on  the  spot  and  refuse  to  disperse,  and  there  is  a  rea- 
sonable apprehension  of  a  renewal  of  the  affray.  Where, 
in  an  action  for  arresting  the  plaintiff  and  detaining  him  ten 
hours,  the  defendant,  who  was  not  an  officer,  pleaded  that 
the  plaintiff'  was  making  a  great  noise,  affray,  disturbance 
and  riot,  in  breach  of  the  peace,  and  because  the  defendant, 
being  a  laborer  and  lodger  in  the  said  house,  at  the  request 
of  the  owner  of  the  house,  in  attempting  to  keep  the  peace 
and  stop  the  noise,  was  attacked  by  the  plaintiff",  he  gave  the 
plaintiff"  in  charge  to  another  man  to  take  him  into  custody 
and  keep  him  until  he  could  be  carried  before  a  justice  of 
the  peace,  it  was  held  no  justification.^ 

'  Handcock  V.  Baker,  2  B.  «fe  P.  260;  Colby  v.  Jackson,  12  N.  Hamp.  526. 

=  Glever  v.  Hynde,  1  Mod.  168;  Hall  v.  Planner,  1  Lev.  196. 

=  Bull.  N.  P.  16. 

"  Grant  v.  Moser.  o  M.  &  G.  123. 

'  2  Inst.  52;  Burns'  Justice,  92;  Hawkins'  P.  C.  174,  b.  2  s.  20;  Timothy  v. 
Simpson,  1  C.  M.  &  R.  757;  Price  v.  Seelev,  10  CI.  «&rin.  39;  Byrnes  v.  Brewster, 
2  Q.  B.  355. 

"  Phillips  V.  Trull,  11  Johns.  486. 

*  The  law  supposes  the  principal  to  be  in  the  custody  of  his  bail;  and  the 
bail  may  take  him  when  he  pleases,  and  detain  or  surrender  him  into  the  custody 
of  the  sheriff  (Anon,  6  IMod.  231;  ex  parte  Gibbons,  1  Atk.  238;  Anon.  2  Show. 
214;  Parker  v.  Bidwell,  3  Conn.  84).  This  he  may  do  personally,  or  by  an 
authorized  agent  (Meddowscroft  v.  Sutton.  1  Bos.  &Pull.  61  ;  Fisher  v.  Fellows, 
5  Esp.  171 ;  KicoUs  v.  Ingersoll,  7  Johns.  145). 


§§  299,  300.  ARREST    BY  PRIVATE   PERSON.  26& 

§  299.  When  a  person  is  so  insane  as  to  be  dangerous  to 
the  community,  any  one  may  arrest  and  detain  him  for  a 
reasonable  time  until  proper  legal  proceedings  can  be  had  to 
confine  him ;  the  restraint  being  demanded  both  for  the 
safety  of  the  lunatic,  and  for  the  preservation  of  the  public 
peace.^  But  as  the  right  to  exercise  restraint  in  such  cases 
has  its  foundation  in  a  reasonable  necessity,  it  ceases  with 
the  necessity.^  In  Coll^y  v.  Jackson,^  the  following  instruc- 
tion was  held  correct :  That  the  burden  was  upon  the  de- 
fendant to  prove  that  the  plaintiif  was  insane,  and  that  it  was 
dangerous  for  him  to  be  at  large ;  that  if  this  was  the  case,  the 
defendant  might  confine  him  until  application  could  be  made 
to  the  proper  authority,  and  until  a  guardian  was  appointed  ; 
that  such  an  application  must  be  made  in  a  reasonaljle  time ; 
that  the  defendant  had  no  right  to  confine  the  plaintiff  for 
an  indefinite  period,  without  making  application  for,  and  pro- 
curing the  appointment  of  a  guardian,  even  if  he  was  dan- 
gerous ;  but  that  if  he  was  dangerous  when  confined,  and 
was  restored  to  reason  before  the  defendant  could  take 
measures  to  have  a  guardian  appointed,  the  defendant  would 
not  be  liable." 

§  300.  A  private  person  may  justify  the  apprehension  of 
another  for  felony  without  warrant,  upon  a  case  of  strong 
suspicion,  if  in  fact  such  a  felony  was  committed,  and  there 
is  probable  ground  to  suspect  that  the  person  arrested  com- 
mitted it ;  ^  and  the  burden  of  proving  that  a  felony  had 
actually  been  committed,  and  the  facts  relied  upon  to  estab- 
lish probable  cause  or  reasonable  ground  for  suspicion  is 


'  Bro,  Abr.  Imprisonment \  Davis  v.  Merrill,  47  N.  Hamp.  208. 
"  Look  V.  Dean,  108  Mass.  116.  '  Supra. 

*  Rcuck  V.  McGregor,  3  Vroom,  70 ;  i:>ost,  §  310. 

*  The  report  of  the  commissioners  on  lunacy  in  England,  made  in  1849 — a 
board  of  eminent  men,  at  the  head  of  whom  stood  Lord  Ashley,  a  learned  jurist 
— closes  with  the  statement  that  a  rule  had  been  recently  adopted,  in  many  of 
the  large  asylums  in  England,  which  proved  satisfactory  to  the  friends  of  the 
insane  and  the  public,  tiiat  no  person  could  be  admitted  into  any  lunatic  asylum 
without  a  certificate  of  his  insanity  signed  by  two  physicians  within  seven  days 
previous  to  his  admission,  stating  also  the  facts  on  which  their  opinion  was 
founded. 


270  FALSE   IMPRISONMENT.  §  300. 

upon  tlie  defendant.^  Sir  Edward  Coke  says  :  "  K  treason 
or  felony  be  done,  and  one  hatli  just  cause  of  suspicion,  this 
is  a  good  cause  and  warrant  in  law  for  liim  to  arrest  any 
man ;  but  he  must  show  in  certainty  the  cause  of  his  sus- 
picion, and  whether  the  suspicion  shall  be  just  or  lawful 
shall  be  determined  by  the  justices  in  an  action  for  false  im- 
prisonment brought  by  the  party  grieved,  or  upon  a  habeas 
corpusP  ^  In  Allen  v.  Wright,^  the  justification  of  an  arrest 
by  a  private  person  was  made  to  depend,  first,  on  the  fact 
that  a  felony  had  actually  been  committed  ;  and,  second,  that 
the  circumstances  were  such  that  a  reasonable  person,  acting 
without  passion  and  prejudice,  would  have  fairly  suspected 
the  plaintiff  of  being  the  person  who  did  it.  And  in  Holley 
V.  Mix,^  the  foregoing  principles  were  distinctly  afiS.rmed. 
In  genei'al,  the  felony  which  will  justify  an  arrest  by  a  pri- 
vate person,  under  the  circumstances  above  stated,  must  be 
an  offense  that  may  be  tried  by  the  courts  of  the  State  in 
which  the  arrest  is  made.     If  it  be  committed  in  a  foreio-u 

o 

State,  and  be  triable  there  only,  it  will  not  justify  such  arrest. 
There  may  be  a  single  exception  to  this  rule  in  the  case  of 
the  arrest  of  a  person  charged  with  the  commission  of  a  felony 
in  a  foreign  State  or  country  for  the  purpose  of  detaining 
him  to  await  a  requisition  upon  the  governor  of  the  State  in 
which  the  arrest  is  made  for  his  extradition,  when  such 
arrest  is  necessary  to  prevent  his  escape.^  But  the  arrest  of 
a  person  by  a  private  individual  without  warrant,  made  for 
the  purpose  of  forcibly  aljducting  the  arrested  person  from 
the  State,  followed  immediately  by  such  abduction,  would 
constitute  a  criminal  offense  of  a  high  grade  at  common  law.^  * 


'Samuel  v.  Pavne,  Doug.  359;  Hall  v.  Booth,  3  Nev.  »fe  Man.  31G;  Hale's 
PI.  Cr.  73;  1  Chit.  Cr.  L.  15;  Hobbs  v.  Branscomb.  3  Camp.  420;  West  v.  Bax- 
endale,  9  Com.  Bench  R.  141;  Burns  v.  Erben,  40  N.  Y.  403;  Brown  v.  Chad- 
sey,  39  Barb.  253. 

'  Coke,  2  Inst.  52.     And  see  Davis  v.  Russell,  5  Bing.  354 ;  2  M.  &  P.  590. 

'  8  Car.  &  P.  522.  ■*  3  Wend.  350. 

^  Mandeville  v.  Guernsey,  51  Barb.  99;  post,  §  327.  '  Ibid. 

*  Punishable  in  New  York  by  imprisonment  in  a  State  prison  not  exceeding 
ten  years  (Rev.  Sts.  of  N.  Y.  5th  ed.  v.  3,  p.  943,  §  30).  Where  the  sheriff  of 
Tioga  County,  Pennsylvania,  under  a  bench  warrant  issued  to  him  as  such  sheriff, 


§§  301,  302.       PRIVATE   PERSON   CAUSING   ARREST.  271 

3.  Private  person  causing  arrest. 

§  301.  One  who  maliciously  causes  an  illegal  arrest,  is 
liable  for  false  imprisonment/  though  not  present  when  the 
arrest  is  made.^  *  Liability  for  an  unlawful  arrest  has  even 
been  extended  to  a  case  where  the  defendant  in  causing  the 
arrest  acted  under  duress.  In  Kentucky,  in  an  action  for  caus- 
ing the  arrest  and  imprisonment  of  the  plaintiff,  it  was  held 
that  the  circumstance,  that  certain  statements  made  by  the 
defendant,  which  occasioned  the  arrest  of  the  plaintiff,  were 
made  under  military  compulsion,  was  no  justification,  if  the 
defendant  knew  that  the  statements  were  false,  and  meant 
thereby  to  effect  the  arrest  of  the  plaintiff.^ 

§  302.  Although  the  making  of  an  affidavit,  upon  which 
the  plaintiff  was  unlawfully  arrested,  will  not  render  the 
defendant  liable,  if  he  made  it  without  knowing  or  having 
any  intention,  that  it  should  be  so  used ;  yet,  if  the  im- 
prisonment be  the  necessary  or  probable  consequence  of 
orders  given  by  the  defendant,  he  will  be  liable  therefor^ 
although  he  did  not  directly  order  it,  or  contemplate  the 
possibility  of  its  occurrence.^     Where  therefore,  in  an  action 

upon  an  indictment  found  in  that  county,  arrested  a  person  in  the  State  of  New 
York  and  carried  him  beyond  its  boundaries,  it  was  held  that,  in  respect  to  those 
acts,  he  was  to  be  treated  as  a  private  person  acting  without  legal  process  (Man- 
deville  v.  Guernsey,  supra). 

There  are  some  cases  in  wliich  the  existence  of  reasonable  ground  of  sus- 
picion is  spoken  of  as  a  defense  in  actions  for  false  imprisonment.  It  will,  how- 
ever be  found  that  these  cases  turn  upou  the  authority  given  to  magistrates  in 
particular  instances  to  arrest  upon  suspicion  merely,  and  in  which,  therefore,  a 
reasonable  suspicion  is  a  sufficient  authority  and  justification  for  an  arrest;  or 
else  they  are  cases  in  which  the  actual  commission  of  a  felony  was  first  proved, 
and  the  case  turned  upon  the  ground  for  suspecting  the  person  arrested. 

'^Maher  v.  Ashmead,  30  Peun.  St.  R.  344;  Baird  v.  Householder,  33  lb.  168; 
Sullivan  v.  Jones,  2  Gray,  570. 

^  Clifton  V.  Grayson,  2  Stew.  413;  Cole  v.  Radcliff,  4  W.  Va.  333. 

=  Huggins  V.  Toler,  1  Bush,  Ky.  193.  "  Roth  v.  Smith,  41  111.  314. 

*  A  landlord  charged  his  tenant  with  taking  and  carrying  away  some  oat 
straw,  on  which  charge  a  criminal  warrant  was  issued,  and  the  tenant  arrested 
and  bound  over  for  trial.  It  was  held  that  the  proper  remedy  of  the  tenant  was 
trespass,  and  not  case  (Baird  v.  Householder,  32  Penu.  St.  R.  168). 

A  person  wlio,  during  the  late  civil  war,  joined  a  gang  of  rebel  scouts  that 
was  taking  to  prison  a  loyal  man  unlawfully  arrested,  encouraged  their  acts,  and 
abased  him,  was  held  guilty  of  false  imprisonment  (Ruffner  v.  Williams,  3  W. 
Va.  243). 


272  FALSE   IMPEISONMENT.  §  303. 

for  assault  and  false  imprisonment,  it  appeared  that  the 
defendant  was  Lieutenant  Governor  of  the  Fortress  of  Gib- 
raltar, and  wishing  to  obtain  possession  of  General  Torrijos,  a 
Spanish  refugee,  whom  he  thought  was  harbored  in  the  house 
of  the  plaintiif,  an  English  merchant  residing  at  Gibraltar,  he 
placed  a  part  of  the  military  force  of  the  garrison  under  the 
command  of  his  military  secretary,  who  ordered  them  to  sur- 
round the  plaintiff's  house,  and  in  the  course  of  their  duty 
one  of  the  soldiers  prevented  the  plaintiffs  egress ;  it  was 
held  that  there  w^as  sufficient  evidence  to  go  to  the  jury  that 
the  various  proceedings  were  under  the  direction  and  carried 
on  by  the  authority  of  the  commandant  of  the  garrison ;  that 
the  soldiers  being  directed  to  search  for  General  Torrijos, 
w^hose  person  they  did  not  know,  the  governor's  military  sec- 
retary in  command  of  them  was  only  carrying  out  his  orders 
in  directing  them  to  prevent  all  persons  from  leaving  the 
house ;  and  that  the  governor's  general  orders  made  him  lia- 
ble for  this  particular  act.  ^ 

§  303.  An  action  for  false  imprisonment  will  lie  when  a 
^varrant  of  arrest  has  been  issued  uj)on  an  insufficient  affida- 
vit. ^  Accordingly,  where  in  an  action  for  an  unlawful  arrest, 
it  appeared  that  the  defendant  having  commenced  an  action 
of  tort  against  the  plaintiff,  caused  him  to  be  arrested  and 
committed  to  jail,  without  having  previously  made  the  affida- 
vit required  l>y  the  statute ;  it  was  held  that  the  present 
action  would  well  lie,  the  illegality  of  the  arrest  not  depend- 
ing upon  the  question  whether  the  suit  was  malicious  and 
without  probable  cause,  but  upon  the  want  of  the  required 
preliminary  oath  that  the  cause  of  action  was  just  and  true.  '^ 
A  notable  example  of  the  rule  under  consideration  is  fur- 


'  Glynn  v.  Houston,  2  M.  &  G.  337 ;  2  Scott  X.  R.  548. 

^  Vredeuburgli  v.  Hendricks,  17  Barb.  179;  Collanier  v.  Elmore,  cited  by 
Willard,  J.,  in  Mosher  v.  The  People,  o  Barb.  575.  And  see  Prosser  v.  Secor,  5 
Barb.  607;  Moore  v.  Watts,  Breese,  18. 

^  Cody  V.  Adams,  7  Grav,  59;  St.  of  Mass.  of  1852,  cb.  312.  and  of  1854, 
cb.  68. 


§  304.  PRIVATE   PERSON   CAUSING  ARREST.  273 

nisbed  in  Smith  v.  Boucliier.  ^  In  that  case  the  vice-chancellor 
of  the  University  of  Oxford,  the  judge  and  jailer  were  also 
defendants.  The  question  arose  upon  a  custom  that  a 
plaintiff  making  oath  that  he  has  a  personal  action  against 
any  person  within  the  pi'ecincts  of  the  university,  and  that 
he  believes  the  defendant  will  not  appear,  but  run  away,  the 
judge  may  award  a  warrant  to  arrest  him  and  detain  him 
until  security  is  given  for  answering  the  complaint.  On  the 
7th  of  August,  1731,  the  defejidant  Bouchier,  having  the 
privilege  of  the  university,  made  a  complaint  to  the  defend- 
ant Shippen,  the  vice-chancellor,  of  a  personal  action  against 
the  plaintiff,  to  his  damage  £1,000,  according  to  his  estima 
tion,  and  that  he  suspected  that  the  plaintiff  would  run  away ; 
which  being  sworn  to,  a  warrant  was  granted  to  the  other 
defendants,  who  arrested  the  plaintiff  and  kept  him  in  prison 
eight  days  for  want  of  sureties.  It  will  be  observed  that  in 
the  foregoing  case,  the  requisite  was,  that  the  plaintiff  should 
swear  his  hdiefthsit  the  defendant  would  run  away ;  whereas, 
the  oath  was,  that  he  susjjected.  The  court  held  that  it  was 
necessary  to  give  jurisdiction,  that  he  should  swear  to  his 
helief ;  and  because  he  did  not,  all  that  was  done  was  coram 
non  judice  and  void.  The  vice-chancellor,  judge,  officer  and 
party,  were  therefore  all  held  liable  for  trespass  and  false 
imprisonment. 

§  304.  The  party  against  whose  body  a  writ  has  been 
issued,  has  a  right  to  know,  on  application  to  the  magistrate 
who  issued  it,  whether  an  affidavit  has  been  duly  filed,  and 
if  so,  an  opportunity  to  ascertain  whether  it  is  sufficient  to 
justify  the  arrest.  In  Whitcomb  v.  Cook,^  which  was  an 
action  for  false  imprisonment,  it  appeared  that  the  ])laiutiff 
was  arrested  and  imprisoned  upon  a  writ  in  favor  of  the  de- 
fendant against  him,  issued  by  a  justice  of  the  peace.  The 
only  question  in  the  case,  was  whether  an  affidavit  had  been 

'  2  Stra.  993.     Referred  to  by  Reeve,   Ch.  J.,  in  Grumon  v.  Raymond,  1 
Conn.  40. 

"  39  Vt.  585.    And  see  Parklmrst  v,  Pearsons,  30  Vt.  705;  Phillips  v.  Wood,, 
81  lb.  322. 

Vol.  I.— 18 


274  '  FALSE   IMPRISONMENT.  §  305. 

filed  wltli  tlic  magistrate  issuing  tlie  writ,  according  to  the 
requirements  of  the  statute.     It  appeared  that  the  defendant 
went  to  his  attorney  to  get  a  writ  against  the  body  of  the 
plaintiff;  that  the  attorney  had  a  Hank  justice's  writ  that 
had  been  signed  by  the  niagistrate,  which  he  had  filled  out 
in  proi)er  form,  and  had  also  made  the  necessary  affidavit, 
which  Avas  signed  and  sworn  to  by  the  defendant;  that  they 
then  went  to  the  office  of  the  magistrate  to  file  the  affidavit; 
that  finding  the  office  locked,  and  the  magistrate  absent,  the 
attorney  slipped  the  affidavit  under  the  door  of  the  office.    It 
further  appeared   that  when   the  affidavit  was  so  put  under 
the  office  door  of  the  magistrate,  he  was  absent  from  the 
county,  and  had  been  for  several  days,  and  did  not  return 
until  a  day  or  two  thereafter,  when  he  found  the  affidavit  on 
the  floor  of  his  oflice,  which  was  the  first  knowledge  he  had 
of  it,  or  of  the  issuing  of  the  writ.     The  county  court  before 
which  the  cause  was  tried,  charged  the  jury  that  the  deposit- 
ing of  the  affidavit  in   the  magistrate's  office  in  the  manner 
and  under  the   circumstances  above  stated,  was  not  such  a 
filing  of  it  as  was  required  by  the  statute,  or  as  would  justify 
the  plaintiff's  arrest;  and  a  verdict  having  been  found  for 
the  plaintiff,  it  was  sustained. 

§  305.  The  causing  another  to  be  arrested  on  void  proc- 
ess is  false  imprisonment.^  And  the  same  is  true  where, 
although  the  process  is  valid,  the  wrong  person  is  caused  to 
be  arrested  under  it.  To  an  action  for  false  imprisonment 
the  defendant  pleaded  a  justification  under  the  county  court 
act ;  ^  that  the  defendant  had  caused  to  be  entered  in  the 
said  court  a  plaint  against  the  now  plaintiff,  and  had  sued 
out  a  summons  against  the  now  plaintiff,  whereupon  judg- 
ment was  given  for  the  now  defendant,  and  that  afterward 
the  defendant  had  sued  out  another  summons  against  the 
now  plaintiff,  and  that  subsequently  an  order  was  made  that 


'  Ludclington  v.  Peck,  2  Conn.  700;  Alleu  v.  Greenlee,  2  Dcv.  o70;  Price  v. 
Graham,  3  Jones  L,  N.  C.  545. 
^  9  &  10  Victi  c.  95. 


§  300.  PRIVATE   PERSON   CAUSING   ARREST.  275 

the  now  plaintiff  should  be  committed,  &c.  The  evidence 
was,  that  the  defendant  having  a  debt  due  from  A.,  made  a 
plaint  in  the  county  court  against  A.  by  name,  and  having 
sued  out  a  summons  against  A.  by  name,  procured  an  order 
for  the  committal  of  A.  by  name,  and  that  all  of  these  differ- 
ent writs  and  orders  were  served  upon  tlie  plaintiff,  and  the 
plaintiff  was  eventually  taken  and  imprisoned  by  direction  of 
the  defendant  under  the  supposition  that  lie  was  A.,  and  that 
the  plaintiff,  who  took  no  notice  of  the  process  served  upon 
him,  never  represented  himself  as  A.  It  was  held  that  the 
plea  w^as  not  supported  by  the  evidence  and  that  the  de- 
fendant was  liable.^ 

§  306.  Where  a  party  lays  a  complaint  before  a  magis- 
trate on  a  subject-matter  over  which  the  latter  has  a  general 
jurisdiction,  and  a  warrant  is  issued  upon  which  the  party 
charged  is  arrested,  the  person  who  made  the  complaint  is 
not  liable  as  a  trespasser,  although  the  particular  case  be  one 
in  which  the  magistrate  had  no  authority  to  act.'^  ^'     It  is  for 


'  Walley  v.  M'Connell,  14  Jur.  193;  19  L.  J.  Q.  B.  162;  s.  p.  Aaron  v.  Alex- 
ander. 3  Camp.  35. 

''  Brown  v.  Chapman,  6  C.  B.  3Go ;  West  v.  Sraallwood,  3  Mees.  &  W.  418;  G 
Dowl.  P.  C.  580. 

*  Tliere  is  a  class  of  cases  in  wliich  officers  having  a  peculiar  and  limited 
jurisdiction  to  issue  process  of  a  special  nature  in  certain  cases,  having  arrested 
individuals  by  such  process  in  cases  not  within  such  authority  or  jurisdiction, 
both  the  officers  and  the  parties  obtaining  the  process  have  been  held  liai>le  for 
false  imprisonment.  Thus,  in  Curry  v.  Pringle,  11  Jolms.  444,  the  defendant 
procured  from  a  justice  a  warrant  instead  of  a  summons,  without  any  oath  of  the 
facts  which  would  authorize  the  justice  to  issue  a  warrant,  and  when  the  plaintiff 
was  not  liable  to  arrest  under  the  statute.  So  in  Bissell  v.  Gold,  1  Wend.  210, 
and  PtOgers  v.  Mulliuer,  6  lb.  597.  But  these  were  instances  where  the  jurisdic- 
tion of  tlie  officer  to  issue  such  a  process  was  special,  and  confined  to  cases  wdiich 
were  brought  within  tlie  statute  creating  it,  and  where  no  steps  being  taken  to 
give  or  to  show  such  a  jurisdiction,  the  proceedings  were  without  any  authority 
or  color  of  justification.  Vandenburgh  v.  Hendricks,  17  Barb.  179,  was  a  case  of 
a  similar  nature  against  a  defendant  who  had  taken  out  a  warrant  under  the  non- 
imprisonment  or  fraudulent  deljtor  act  upon  an  affidavit  which  was  insufficient 
to  give  the  officer  jurisdiction  or  authority  to  act.  These  cases  are  distinguisha- 
Ijje  from  Von  Latham  v.  Libby,  supm^  because  in  the  latter  the  magistrate  had  a 
general  jurisdiction  of  the  sul)ject-matter,  to  wit,  arrests  of  persons  charged  with 
crimes,  and  of  the  person  of  the  accused.  Where  a  person  brings  an  action 
before  a  justice  of  the  peace  on  which  the  defendant  is  arrested  and  held  to  bail, 
tlie  plaintifl'is  not  liable  in  trespass  for  an  assault  and  battery  and  false  im[)rison- 
ment.  because  owing  to  tlie  absence  of  the  justice  at  the  return  day  the  writ  was 
not  entered  (Shaw  v.  Reed,  KJ  Mass.  450).  By  the  court:  "  Trespass  does  not 
lie  in  this  case,  for  the  writ  being  good  at  the  time  it  was  served,  the  arrest  was 


27G  FALSE    IMPRISONMENT.  §  300. 

the  magistrate  to  determine  whether  sufficient  grounds  exist 
in  law  and  fact  to  arrest  a  person  charged  by  another  with  a 
criminal  offense,'  and  the  party  who  has  merely  stated  the 
case  to  the  magistrate  obviously  cannot  be  a  ti'espasser,  al- 
though the  arrest  be  wholly  unjustifiable.^  "'  The  plaintiff 
voluntarily  went  before  a  police  magistrate  to  meet  a  charge 
of  embezzlement  whicli  w^as  there  about  to  be  made  against 
him  by  the  defendant.  The  magistrate  declining  to  entertain 
the  matter  unless  a  charge  was  formally  made,  the  defendant 
said  :  "  Well,  then,  I  charge  him  with  embezzling  30s."  The 
plaintiff  was  then  ordered  by  one  of  the  constables  in  attend- 
ance to  go  into  the  dock,  the  cliarge  was  gone  into,  and  the 
plaintiff  he]d  to  bail.  It  was  held  that  the  act  of  the  de- 
fendant amounted  to  no  more  tlian  calling  upon  the  magis- 
trate to  exercise  his  jurisdiction,  and  consequently  that  he 
was  not  liable  for  the  imprisonment  of  the  plaintiff.^     So 

not  tortious.  The  justice  had  jurisdiction  of  the  cause,  and  it  was  only  by  reason 
of  an  event  subsequent  to  the  ser\'ice  of  the  writ  that  it  became  inoperative. 
The  plaintiff's  remedy  is  by  an  action  of  the  case  apraiust  the  defendant,  if  the 
justice's  absence  arose  from  his  negligence,  or  against  the  justice,  if  he  was  noti- 
tied  of  the  process,  and  voluntarily  or  negligently  absented  himself.'' 

'  Von  Latham  v.  Libby,  38  Barb.  339.     See  j^ost,  §  334. 

-  Brown  v.  Chapman,  8  C.  B.  365;  12  Jur.  799;  17  L.  J.  329. 

*  In  this  case,  the  facts  were  as  follows:  Libl)y  was  the  owner  of  a  house  and 
lot  in  Brooklyn,  and  Rowan  his  agent.  Rowan  made  an  affidavit  before  a  police 
magistrate  that  the  plaintiff  had  unlawfully  intruded  into  and  taken  possession 
of  the  house  owned  by  Libby  without  his  authority.  Upon  this  affidavit  the 
magistrate  issued  a  warrant  reciting  the  charge  and  commanding  the  arrest  of 
the  plaintiff  to  answer  it  as  a  violation  of  the  statute  in  such  case.  Tlie  plaintiff 
was  arrested,  pleaded  to  the  charge,  and  was  suffered  to  go  upon  his  own  prom- 
ise to  appear,  Rowan  appearing  against  liim.  The  case  was  adjourned  three 
times,  and  upon  the  last  hearing.  Rowan  not  appearing,  the  complaint  was  dis- 
missed and  the  plaintiff  discharged.  The  statute  under  which  tlie  proceedings 
against  the  plaintiff  were  taken  provided,  among  other  things,  that  any  person 
who  should  thereafter  intrude  ujoon  any  lot  or  piece  of  laud  situate  within  the 
bounds  of  any  incorporated  city  or  village  without  the  consent  of  the  owner 
should  be  deemed  guilty  of  a  misdemeanor.  It  was  not  denied  that  the  magis- 
trate to  whom  the  complaint  was  made  had  general  criminal  jurisdiction  to  issue 
process  for  the  arrest  of  persons  charged  witli  any  crime  or  misdemeanor  of 
whatever  degree;  nor  that  he  had  jurisdiction  to  try  and  to  convict  the  plaintiff", 
if  he  were  guilty,  of  an  offense  under  the  foregoing  statute.  The  ground  upon 
which  the  defendant's  complaint  was  dismissed  was,  that  the  plaintiff  was  charged 
witli  intruding  into  a  house  and  not  upon  a  lot  of  land,  and  that  Libby  w-as  not 
stated  in  the  complaint  or  warrant  to  be  the  owner  of  anj'  lot  or  piece  of  land. 
It  was  therefore  contended  that  neitiier  the  atBdavit  nor  the  warrant  showed  the 
commission  of  any  offense  by  tlie  plaintiff,  and  for  that  reason,  at  the  trial  in  the 
city  court  of  Brooklyn,  the  defendants  were  held  liable  for  false  imprisonment 
in  the  plaintiff's  arrest.     The  Supreme  Court,  however,  set  the  verdict  aside. 


§  307.  PRIVATE    PERSON    CAUSING    ARREST.  277 

likewise,  where  it  appeared  that  the  plaintiff  was  given  into 
custody  by  the  defendant  on  a  charge  of  stealing,  and  was 
taken  before  a  magistrate,  who,  after  hearing  the  evidence 
of  the  defendant  in  support  of  the  charge,  remanded  him,  it 
was  held,  that  the  remand  being  the  act  of  the  magistrate 
the  defendant  was  only  liable  in  damages  for  the  trespass 
and  imprisonment  in  taking  the  plaintiff  before  the  magis- 
trate.^ In  another  case,  the  defendant  gave  information 
before  a  magistrate,  upon  which  the  plaintiff  was  taken  up 
on  a  warrant.  After  the  charge  was  dismissed  for  the  time, 
and  the  plaintiff  liberated  on  his  promise  to  appear  at  a  future' 
day.  the  defendant  stated  that  he  had  another  charge  of  for- 
gery against  the  plaintiff',  who  was  retiring,  but  was  again 
put  to  the  bar.     It  was  held  that  trespass  would  not  lie.^  * 

§  307,  In  the  case  of  an  arrest  upon  valid  process  issued 
by  a  competent  tribunal  having  jurisdiction,  there  is  no  tres- 
pass, and  false  imprisonment  will  not  lie,  even  though  such 
arrest  be  maliciously  procured  by  the  prosecutor  without 
probable  cause,  ^f  But  if  a  person  be  arrested  on  process 
which  is  afterward  vacated  or  superseded,  he  may  maintain 
trespass,  although  the  party  causing  the  arrest  was  not  actu- 
ated by  any  malicious  or  unjust  motives;  because  the  process 
itself  has  become  a  nullity,  and  the  arrest  therefore  unauthor- 
ized,^ The  general  rule  is,  that  false  imprisonment  lies  for 
arrest  under  process  irregularly  issued,  but  not  for  arrest 
under  process  erroneously  issued.  It  seems,  however,  that 
the  irregularity  must  have  been  apparent  upon  the  face  of 


'  Lock  V,  Ashton.  13  Jur.  167;  IS  L.  ,T.  Q.  B.  76. 

'  Barber  v.  Rollinson,  1  C.  &  M.  330. 

'  Sleight  V.  Ogle,  4  E.  D.  Smith,  445 ;  Burns  v.  Erben,  1  Robertson,  555 ; 
s.  c.  40  N.  Y.  46:j. 

*  Hayden  v.  Shed,  11  Mass.  500. 

•^  But  the  rule  is  strict  that  in  a  court  of  special  and  limited  jurisdiction  the 
party  becomes  n  trespasser  who  extends  the  power  of  the  court  to  a  case  to  which 
it  cannot  lawfully  be  extended  (Curry  v.  Pringle,  11  Johns.  444). 

t  If  one  knowing  that  he  has  no  cause  of  action  or  complaint,  cause  another 
to  be  arrested,  the  latter  may  maintain  an  action  upon  the  case  for  this  injury, 
although  the  whole  proceedings  are  perfectly  regular  and  Jegal  in  point  of  form. 
Bui  he  could  not,  in  such  a  case,  maintain  trespass. 


278  FALSE   IMPRISONMENT.  §  308. 

the  process  itself,  or  upon  inspection  of  tLe  record,^*'"  There 
is  an  important  distinction  between  erroneous  process  and 
irregular  process.  The  first,  is  the  act  of  the  court ;  and  even 
after  it  has  Leen  set  aside  or  reversed,  whatever  was  done 
under  it  while  in  force,  may  be  justified.  But  irregular  proc- 
ess is  the  act  of  the  prosecutor,  and  when  once  set  aside,  is 
considered  as  having  been  a  nullity  from  the  beginning,  and 
forms  no  justification  to  him  for  anything  done  under  it.  In 
some  cases,  irregularity  of  process  is  waived  by  the  party 
complaining  of  it.  In  other  cases,  irregularity  renders  the 
process  void  and  cannot  be  waived ;  as  when  a  writ  has  been 
issued  on  Sunday,  or  the  irregularity  consists  in  a  departure 
from  a  rule  of  law  founded  on  public  policy.  In  some  in- 
stances process  is,  on  the  face  of  it,  to  all  intents  and  pur- 
poses, a  nullity,  as  where  it  issues  in  a  case  plainly  out  of  the 
jurisdiction  of  the  court  or  magistrate  issuing  it.  But  the 
validity  of  the  process  of  a  court,  unless  it  appear  upon  the 
face  of  it  to  be  an  absolute  nullity,  cannot  be  called  in  ques- 
tion collaterally,  until  it  has  been  vacated  or  set  aside  by  the 
court,  or  abandoned  absolutely  by  the  party  w^ho  sued  it 
out.  '^  f 

§  308.  A  person  who  sues  out  and  delivers  to  an  officer 
valid  process,  is  not  responsible  for  the  irregularity  of  the 
ofiicer  in  executing  the  same,  unless  it  appear  affirmatively 
that  the  officer  acted  under  his  orders  when  he  committed  the 
trespass.  In  Adams  v.  Freeman,^  the  plaintifi:*  was  attached 
and  imprisoned  under  the  statute  for  refusing  or  neglecting 

'  Reynolds  v.  Corp,  3  Caines,  207. 

^  Blanchard  v.  Goss,  2  N.  Hamp.  491,  and  cases  cited. 

3  9  Johns.  117. 

*  In  Reynolds  v.  Corp,  supra,  the  question  arose  whether  an  action  of  tres- 
pass would  lie  where  the  judgment  debtor  had  been  discliarged  from  custody  by 
supersedeas,  for  want  of  being  charged  in  execution  in  due  time;  and  if  it  would, 
then  whether  the  plaintiff  could  sue  so  long  as  the  award  of  the  execution  re- 
mained good,  and  had  never  been  set  aside  for  irreg"larity.  The  court  below 
having  held  the  affirmative,  the  Supreme  Court  set  tlie  verdict  aside. 

t  Where  a  complaint  for  crime  is  dismissed  by  the  m:igistrate  in  consequence 
of  the  complainant  not  r.ppeariug  to  prosecute  at  the  time  to  which  the  case  is 
adjourned,  this  is  a  sufficient  termination  of  the  prosecution  for  the  purposes  of 
an  action  for  false  impriEonmcut  (Fay  v.  O'Neill,  o6  N.  Y.  R.  11). 


§  309.  PRIVATE  PERSON   CAUSING  ARREST.  279 

to  perform  an  award;  the  statute  making  the  party  in  such 
case,  "Subject  to  all  the  penalties  of  contemning  a  rule  of 
court."  The  irregularity  complained  of  by  the  plaintiff  was 
that  he  was  arrested  on  the  attachment  on  the  31st  of  May, 
being  after  the  return  day.  The  attachment  was  returnable 
on  the  29th  of  May,  and  on  that  day  the  defendant  averred 
that  he  delivered  the  process  to  the  sheriff.  It  was  lawful 
for  the  sheriff  to  arrest  the  defendant  on  the  return  day,  and 
the  defendant  gave  no  direction  to  have  him  arrested  after- 
wards. It  did  not  appear  that  the  defendant  knew  at  the 
time  the  plaintiff  was  detained  a  prisoner  that  he  had  been 
arrested  after  the  retnrn  day.  The  court,  in  directing  judg- 
ment to  be  entered  for  the  defendant,  remarked  that  the  tres- 
pass, if  any,  was  committed  by  the  sheriff,  and  not  by  the 
defendant. 

§  309.  With  reference  to.  the  liability  of  a  married  wo- 
man, it  may  be  stated  that  coercion  of  the  wife,  which  is  sup- 
posed to  exist  in  all  cases  of  tort  committed  in  the  presence 
or  by  direction  of  the  husband,  is  but  a  presumption  of  law, 
and  like  all  other  ^^resumptions,  may  be  repelled  by  j^roof. 
Where  in  an  action  against  a  husband  and  wife,  for  the  wife's 
maliciously  procuring  the  arrest  and  imprisonment  of  the 
plaintiff,  an  apj^eal  having  been  taken  by  the  defendants 
from  a  judgment  rendered  against  them  on  the  report  of  a 
referee,  it  was  held  that  as  the  testimony  appeared  to  have 
been  sufficient  to  have  justified  the  referee  in  concluding  that 
the  wrongful  act  of  the  wife  was  voluntary  on  her  part,  and 
Avas  her  individual  act,  and  although  in  some  respects  done 
in  the  presence  and  company  of  her  husband,  yet  not  done 
by  his  command  or  coercion,  it  must  be  assumed  that  the 
referee  found  as  matter  of  fact,  from  the  evidence,  that  the 
legal  presumption  of  coercion  of  the  wife,  had  been  repelled 
by  proof.  ^  "* 

'  Cassin  v.  Delaney,  1  Daly,  224. 

*  The  judgment  in  this  case  was,  however,  reversed  by  the  Court  of  Appeuls, 
on  the  ground  that  testimony  offered  by  the  defendants  to  show  tliat  tiie  acts 
charged  were  done  by  the  direction  of  the  husbaud,  was  exchided  (38  N.  Y.  178). 


280  FALSE  IMPRISONMENT.  §  310. 

§  310.  Where,  in  an  action  for  causing  the  plaintiffs  ar- 
rest without  process,  it  appears  that  a  felony  having  been  com- 
mitted, the  defendant  did  not  adopt  the  usual  and  more  pru- 
dent course  of  having  an  investigation  by  a  magistrate,  it  is 
incumbent  on  him  to  make  out  to  the  entire  satisfaction  of 
the  jury  not  only  that  a  felony  has  been  committed,  but  that 
the  circumstances  of  the  case  were  such  that  a  reasonable 
person,  acting  without  passion  or  prejudice,  w^ould  fairly  have 
suspected  the  plaintiff  of  being  the  one  who  had  committed 
it.-'  *  In  an  action  for  false  imprisonment  the  defendant 
pleaded  that  his  goods  had  been  stolen,  and  that,  having 
cause  to  suspect  the  plaintiff  of  the  felony,  he  gave  her  into 
custody.  The  plea  stated  several  grounds  of  suspicion. 
The  plaintiff  called  in  a  policeman  to  prove  that  the  de- 
fendant directed  him  to  take  the  plaintiff'  into  custody. 
The  policeman,  in  his  cross  examination,  said  that  at  the 
same  time  and  in  the  presence  of  the  plaintiff,  the  defendant 
stated  that  the  goods  had  been  stolen,  and  also  stated  some 
ot  the  grounds  of  suspicion  mentioned  in  the  plea.  It  was 
held  that  this  was  evidence  for  the  jury  to  consider,  and 
from  which  they  might  find  that  the  felony  had  been  com- 
mitted, and  that  the  defendant  had  good  cause  to  sus})ect  the 
plaintiff  if  this  evidence  satisfied  them  that  the  facts  were 
i-eally  so.~  f     In  a  case  in  New  York,  it  appeared  that  in  pur- 


'  Allen  V.  Wright,  8  Car.  &  P.  522;  ante,  §  300. 

'  Williams  v.  Crosswell,  3  Car.  &  K.  422. 

*  Allen  V.  Wright,  svpra,  was  an  action  for  false  imprisonment  in  which  the 
defendant  justified  on  the  ground  that  the  plaintifl"  had  been  his  lodger,  and 
.after  she  had  left  lier  apartments,  he  discovered  that  some  feathers  were  missing 
from  a  bed  which  she  had  occupied,  and  he  suspecting  her  to  be  the  person  that 
had  stolen  them,  caused  her  to  be  arrested.  It  appeared  that  the  defendant  took 
a  policeman  to  the  new  lodging  of  the  plaintifl",  a  few  days  after  she  had  left  his 
house,  and  had  her  arrested  and  taken  to  the  station  house,  and  that  the  next 
day  she  was  examined  before  the  magistrate  and  discharged.  A  verdict  was 
found  for  the  plaintiff. 

t  It  was  held  in  Williams  v.  Crosswell,  supra,  that  although  the  plea  ought 
to  set  out  the  defendant's  grounds  of  suspicion,  yet  that  he  would  be  entitled  to 
a  verdict  without  proof  of  the  whole  of  them,  if  he  proved  that  a  felony  was  in 
fact  committed,  and  established  so  much  of  the  grounds  of  suspicicm  as  satisfied 
the  jury  that  he  had  reasonable  cause  to  suspect  the  plaintiff. 

Where  the  defendant  caused  the  plaintiff  to  be  arrested  for  stealing  fat,  and 
there  was  no  legal  evidence  of  the  charge,  but  the  defendant  honestly  believed 


§  311.  PRIVATE  PERSON   CAUSING  ARREST.  281 

suance  of  information  given  by  the  defendant,  a  police  officer, 
accompanied  by  the  defendant,  arrested  the  pLxiutiff  without 
warrant,  took  her  to  the  police  station,  where  she  was  de- 
tained a  few  minutes,  and  after  some  conversation  w^ith  the 
officer  in  charge,  she  was  permitted  to  return  to  her  residence. 
A  felony  had  been  committed  that  evening  at  the  house  of 
the  defendant's  father.  The  plaintiff  had  visited  the  house 
that  evening,  and  according  to  the  information  on  which  the 
defendant  acted,  was  the  only  person  not  a  member  of  the 
family  who  had  been  in  the  basement.  Silver  had  been 
stolen  from  the  basement.  It  was  there  when  the  plaintiff 
entered,  and  until  after  eight  o'clock ;  and  it  was  missed  very 
shortly  after  she  left  the  house.  The  inquiry  in  the  case  was 
whether  within  the  rule  with  respect  to  arrests  made  or  aided 
by  private  persons,  the  plaintiff  was  entitled  to  recover.  It 
was  held  that  she  was  not ;  but  that  as  a  felony  had  in  fact 
been  committed,  the  circumstances  justified  the  suspicion 
which  led  to  lier  arrest.  ^  The  defendant  is  answerable  for 
all  of  the  ordinary  acts  of  precaution  on  the  part  of  the  po- 
liceman to  whom  he  has  given  the  plaintiff  in  custody,  on  a 
charge  of  felony,  though  more  severity  may  have  been  em- 
ployed than  the  occasion  required.^ 

§  311.  If  the  act  of  the  party  whose  arrest  has  been 
caused,  be  not  punishable  criminally,  nor  likely  to  occasion  a 
breach  of  the  peace,  the  person  giving  him  in  custody  will  be 
liable.  Where,  therefore,  in  an  action  for  false  imprisonment, 
it  appeared  that  the  plaintiff'  was  supplied  with  certain  arti- 
cles of  food  at  the  defendan1>'s  eating  saloon,  and  received  a 
check  indicating  the  amount  to  be  paid  at  the  bar,  which 
check,  it  was  alleged,  he  kept,  and  substituted  in  its  place 
one  which  he  had  in  his  possession  for  a  much  smaller 
amount,  which  was  taken  as  the  true  voucher,  and  the 
amount  of  which  only  he  paid,  it  was  held  that  however 

that  his  fat  had  been  stolen,  and  that  tlie  pUiiutiff  had  stolen  it,  and  there  was 
reasonable  ground  for  his  belief,  it  was  held  that  the  grounds  of  suspicion  were 
admissible  in  mitigation  of  damages  (Chinu  v.  Morris,  2  C.  &  P.  3G1). 

'  Burns  v.  Erben,  40  N.  Y.  403.  =  Edgiil  v.  Francis,  4  Jur.  3G5. 


282  FALSE  IMPRISONMENT.  §  312. 

reprehensible  or  contemptible  such  an  act  might  have  been, 
it  was  not  one  for  which  he  could  be  punished  criminally, 
nor  was  its  immediate  tendency  to  provoke  a  breach  of  the 
peace ;  and  that  as  the  defendant  directed  a  police  officer  to 
take  the  plaintiff  into  custody,  and  he  was  arrested  without 
warrant,  the  defendant,  as  a  party  assisting  therein,  was 
lial)le.  ^  So  likewise,  j)roof  of  annoyance  and  disturba^nce  by 
a  person  present  at  a  meeting,  such  as  crying  "  Hear,  hear," 
putting  questions  to  a  speaker,  and  making  observations  on 
his  statement,  will  not  justify  the  chairman  of  the  meeting 
in  giving  such  person  in  charge  to  the  police.  In  order  to 
justify  such  a  course,  it  must  be  shown  that  what  was  done 
amounted  to  a  breach  of  the  peace,  ^* 

§  312.  If  a  person  tell  a  policeman  to  take  charge  of 
another,  it  is  the  same  as  his  telling  the  policeman  to  take 
the  other  into  custody,  and  is  sufficient  to  support  an  action 
for  false  imprisonment.^  But  a  private  person  incurs  no 
liability  l)y  merely  communicating  facts  or  circumstances  of 
suspicion  to  an  officer,  leaving  him  to  act  on  his  own  judg- 
ment and  responsibility.*  Accordingly,  where  in  an  action 
for  false  imprisonment,  it  appeared  that  a  felony  having  been 
committed  in  the  house  of  the  defendant,  he  sent  for  the 
police,  complained  of  the  robbery,  and  stated  various  cir- 
cumstances of  sus2:)icion  which  had  come  to  his  knowledge, 
and  the  policeman  having  investigated  those  circumstances, 
on  his  o\vn  authority  arrested  the  plaintiff  and  took  him  to 
a  police  station,  and  at  the  same  time  requested  the  defend- 


'  Boyleston  v.  Kerr,  2  Daly,  220.  "  Wooding  v.  Oxley,  9  Car.  &  P.  1. 

'  Wheeler  v.  Whiting,  9  Car.  &  P.  262. 

*  Brown  v.  Chadsey,  39  Barb.  253. 

*  The  plaintiff  having  brought  trespass  for  being  taken  into  custody  upon  a 
charge  of  doing  malicious  damage  to  a  house  of  which  he  himself  was  tenant,  by 
order  of  the  defendant,  who  was  the  attorney  to  the  mortgagee  of  the  house,  and 
the  objection  taken  that  no  notice  of  action  had  l)een  given  pursuant  to  the 
statute,  the  judge  asked  the  jury  whether  the  defendant  acted  bona  fide  or  only 
colorably  in  giving  the  jDlaintiff  into  charge.  Held  a  misdirection,  as  the  jury 
ougl)t  to  have  been  asked  whether  the  defendant  was  servant  of,  or  had  author- 
ity from  the  mortgagee  to  do  the  act  complained  of,  or  reasonably  believed  him- 
self to  be  in  either  of  those  positions  (Kine  v.  Evershed,  11  Jur.  UT3 ;  10  L.  .J.  271). 


§  313.  PRIVATE   PERSON   CAUSING  ARREST.  283 

ant  to  come  to  the  station  and  sign  the  charge  sheet,  which 
be  did,  accusing  the  plaintiti'  of  the  felony ;  it  was  held  that 
as  charging  a  person  with  an  offense  was  a  dififerent  thing 
from  giving  him  into  custody,  the  defendant  was  not  liable. 
The  arrest  and  detention  of  the  plaintiff  were  the  acts  of  the 
j)olice  officer ;  and  the  defendant  did  nothing  more  than  he 
was  under  the  circumstances  bound  to  do,  viz:,  sign  the 
charge  sheet.  He  might  have  been  liable  if  he  had  acted 
mala  fde^  but  not  otherwise.^  If,  however,  the  defendant 
had  given  the  plaintiff  in  charge,  or  directed  the  policeman 
to  take  him  into  custody,  he  would  have  been  answerable  in 
damages  for  the  imprisonment ;  and  the  signing  of  the  charge 
sheet  would  have  hQe:n  prima  facie  evidence  that  the  defend' 
ant  ordered  and  directed  the  arrest.^ 

§  313.  A  person  is  not  liable  for  false  imprisonment  who, 
seeing  a  man  in  custody  of  an  officer  for  a  supposed  offense, 
points  out  another  as  the  real  criminal,  without  directing  the 
officer  to  take  that  one  into  custody.'^ ''^  It  is  however  other- 
wise, if  he  cause  the  arrest  of  an  innocent  party  by  volun- 
tarily giving  information  which  he  supposed  at  the  time  to 
be  true,  but  which  turns  out  to  be  false.  In  an  action  for 
false  imprisonment,  it  appeared  that  the  defendant  had  seen 
two  young  men  steal  some  boots  from  a  boot  maker's  win- 
dow and  run  off,  and  that  the  defendant  followed  and  pointed 
out  the  plaintiff  as  one  of  the  young  men  to  a  policeman, 
who  took  the  plaintiff  into  custody.  The  defendant  did  not 
give  any  charge  to  the  policeman.  A  verdict  having  been 
found  for  the  plaintiff,  the  court  refused  a  new  trial.* 


'  Grinhamv.  Willey,  4  H.  &  N.  496;  L.  J.  Exch.  242;  Brown  v.  Chapman, 
6  C.  B.  :5G5. 

-  Hopkins  v.  Crowe,  4  Ad.  &  E.  774;  Wheeler  v.  Whitinor,  9  C.  &  P.  262; 
Warner  v.  Riddiford,  4  C.  B.  N.  S.  200;  Morgan  v.  Iluo-hes.  2  T.  R.  231;  Stone- 
house  V.  Elliott,  6  lb.  315;  Harris  v.  Dignum,  29  L.  J.  Exch.  23. 

=*  Gosden  v.  Elfick,  13  Jur.  989. 

*  Hudson  V.  Howard,  1  Jur.  658. 

*  Where  the  complainant  accompanied  the  constable  charged  with  the  execu- 
tion of  the  warrant,  and  pointed  out  to  him  the  person  to  be  arrested,  it  was 
held  tliat  this  was  evidence  to  go  to  tlie  jury  of  a  participation  in  tlie  arrest 
(West  V.  Smallwood,  3  M.  &  W.  418;  6  Dowl.  P.  C.  580;  2  Jur.  328). 


284  FALSE  IMPRISONMENT.  §§314,315. 

§  314.  When  in  an  action  for  causing-  a  person  to  be 
taken  to  a  police  station,  it  appears  that  the  going  proceeded 
originally  from  the  plaintiff's  own  Vvill,  the  defendant  will 
"he  entitled  to  a  verdict  on  either  "not  guilty"  or  "leave 
and  license  "  pleaded.  But  the  plaintiff  will  not  be  deprived 
of  his  right  to  recover  damages  if  it  appear  that  being  acted 
upon  by  the  defendant's  having  made  a  charge  of  felony 
against  him  in  the  presence  of  a  policeman,  he  went  volun- 
tarily with  the  policeman  to  the  station  house  for  the  pur- 
pose of  meeting  the  charge.-^ 

§  315.  Where  a  charge  for  assault  and  false  imprisonment 
is  sought  to  be  excused  under  the  plea  that  the  plaintiff  un- 
lawfully entered  the  defendant's  house,  and  would  not  leave 
when  requested,  w^hereupon  the  defendant  sent  for  a  police 
officer  and  gave  the  plaintiff  into  custody,  it  must  be  alleged 
and  proved,  either  that  there  was  a  breach  of  the  peace  at 
the  time,  or  that  a  breach  of  the  peace  had  been  committed, 
and  that  there  ^v^as  reasonable  ground  for  apprehending  that 
it  would  be  renewed.^  Trespass  for  assault  and  false  im- 
prisonment, and  taking  the  plaintiff  to  a  police  station. 
Plea  that  the  defendant  was  possessed  of  a  dwelling-house, 
and  that  the  plaintiff  entered  the  dwelling-house,  and  then 
and  there  insulted,  abused,  and  ill  treated  the  defendant  and 
his  servants  in  the  dwelling-house,  and  greatly  disturbed 
them  in  the  peaceable  possession  thereof,  in  breach  of  the 
peace;  whereupon  the  defendant  requested  the  plaintiff  to 
depart,  which  he  refused  to  do,  and  continued  in  the  house, 
making  the  said  disturbance  and  affray  therein ;  that  there- 
upon the  defendant,  in  order  to  preserve  the  peace  and  re- 
store good  order  in  the  house,  gave  charge  of  the  plaintiff  to 
a  certain  policeman,  and  requested  the  policeman  to  take  the 
plaintiff  into  his  custody,  to  be  dealt  with  according  to  law ; 
and  that  the  policeman,  at  sucli  request  of  the  defendant, 
gently  laid  his  hands  on  the  plaintiff  for  the  cause  aforesaid, 

'  Peters  v.  Stanway,  G  Car.  &  P.  737. 

=  Grant  v.  Moser,  5  M.  &  Gr.  123;  Price  v.  Seeley,  10  CI.  &  Fin.  28. 


§  310.  PRlVATi:  PERSON  CAUSING  ARREST.  285 

and  took  Iiirn  intociistody.  It  was  proved  that  the  plaintiff 
entered  the  defendant's  shop  to  huj  an  article,  when  a  dis- 
pute arose  between  the  plaintiff  and  the  defendant's  shop- 
man ;  that  the  plaintiff  refusing,  on  request,  to  go  out  of  the 
shop,  the  shopman  endeavored  to  turn  him  out,  and  an  affray 
ensued  between  them ;  that  the  defendant  went  into  the 
shop  during  the  affray,  which  continued  for  a  short  time 
after  he  came  ;  that  the  defendant  then  requested  the  plaintiff 
to  leave  the  shop  quietly,  and  that  he  refusing  to  do  so,  the 
defendant  gave  him  in  charge  to  a  policeman,  who  took  him 
to  a  station  house.  It  was  held  that  the  defendant  was  jus- 
tified, under  the  circumstances,  in  giving  tlie  plaintiff  in 
charge,  in  order  to  prevent  a  renewal  of  tlie  affray.^ '''" 

§  316.  Where  a  merchant  employs  a  clerk  to  sell  goods 
for  him  in  his  absence,  or  a  superintendent  to  take  the 
general  charge  and  management  of  his  business  at  a  partic- 
ular store,  he  does  not  thereby  confer  authority  upon  sucli 
clerk  or  superintendent  to  arrest,  detain,  and  search  any  one 
suspected  of  having  stolen  and  secreted  about  his  person, 
any  of  the  goods  kept  in  such  store.  It  cannot  be  presumed 
that  a  master  by  intrusting  a  servant  Avith  his  property,  and 
conferring  power  upon  him  to  transact  his  business,  thereby 
authorizes  him  to  do  any  act  for  its  protection,  that  he  could 
not  lawfully  do  himself,  if  present.  The  master  would  not, 
if  present,  be  justified  in  arresting,  detaining  and  searching 
a  person  upon  suspicion,  however  strong,  of  having  stolen 
his  goods,  and  secreted  them  upj3n  his  person.  The  authority 
of  the  merchant  to  his  clerk  or  superintendent,  could  not  there- 
fore be  implied  from  his  employment.^  f     But  it  follows  from 

'  Timothy  v.  Simpson,  1  C.  M.  &  R.  757;  5  Tyr.  244;  6  Car.  &  P.  499;  see 
Reece  v.  Taylor,  4  Nev.  &  M.  460;  1  Har.  &  W.  15;  Atkinson  v.  Warne,  1  C.  M. 
&  R.  827;  5  Tyr.  481 ;  3  Dowl.  483. 

^  Mali  V.  Lord,  39  N.  Y.  381. 

*  The  rule  stated  in  the  text  will  be  found  illustrated  in  the  following  cases : 
Green  v.  Bartram,  4  Car.  ct  P.  308;  Rose  v.  Wilson,  8  Moore,  362;  1  Bing.  353; 
Cohen  v.  Hnskisson,  2  Mees.  &  W.  477;  Bavnes  v.  Brewster,  2  Ad.  &  E.  N.  S. 
375;  Grant  v.  Moser,  2  Dowl.  N.  S.  923;  6  Scott,  N.  R.  46;  Simmons  v.  Millin- 
gen,  2  C.  B.  524. 

t  A  town  is  not  liable  for  the  unautliorized,  illegal,  and  oppressive  acts  of  a 


28G  FALSE  IMPRISONMENT.  ^§317,318. 

tlie  rule  as  to  tlie  liability  of  tlie  raastei*  who  cooimands, 
and  the  servant  who  commits  a  trespass,  that  where  an 
arrest  has  been  made  under  process,  which  is  afterward  set 
aside  for  irregularity,  both  the  attorney  who  sued  out  the 
process,  and  the  client  who  set  the  attorney  in  motion,  may 
be  prosecuted  for  the  assault  and  false  imprisonment.^ 

§  317.  An  action  may  be  maintained  against  a  judgment 
creditor  for  maliciously,  and  without  reasonable  or  probable 
cause,  indorsing  a  writ  of  ca.  sa.,  issued  on  a  judgment  to  levy 
a  larijer  sum  than  is  due,  and  causino-  the  debtor  to  be  ar- 
rested  thereunder ;  and  the  plaintilf,  before  bringing  the 
action,  need  not  obtain  his  discharge  from  custody.^  But 
where,  previous  to  judgment,  the  plaintiff  paid  part  of  the 
debt  for  which  he  w^as  sued,  and  afterward  judgment  was 
signed,  and  a  ca.  sa.  issued  for  the  whole  amount,  it  was  held 
that  no  action  lay,  so  long  as  the  judgment  stood  for  the  full 
amount.^  ''^ 

§  318.  Where  a  creditor  employs  the  power  of  imprison- 
ment given  by  law  for  the  collection  of  his  judgment  debt, 
to  extort  other  money  from  the  debtor,  or  to  compel  him  to 
pay  another  debt  against  his  will,  the  creditor  wall  be  deemed 
a  trespasser  from  the  beginning.^  When  the  process  of  law 
has  been  abused  and  prostituted  to  an  illegal  purpose,  it  is 


constable  in  committing  a  person  to  prison  witliout  a  mittimus  or  vrarrant  of 
committal  (Board  of  Trustees  v.  Schroeder.  o8  111.  353). 

'  Stephens  v.  Elwall,  4  M.  &  S.  261 ;  Bennett  v.  Baves,  5  H.  &  N.  391 ;  29 
L.  J.  Exch.  224. 

^  Gilding  v.  Eyre,  31  L.  J.  C.  P.  174. 

=  Huffer  V.  Allen,  L.  R.  3  Exch.  15. 

*  Breck  v.  Blanchard,  2  Fost.  303;  Richardson  v.  Duncan,  3  N.  Hamp.  508; 
Severance  v.  Kimball,  8  lb.  386;  Stoddard  agst.  Bird,  Kirby  R.  65. 

*  "It  would  not  be  creditable  to  our  jurisprudence  if  the  debtor  had  no 
remedy  by  action  where  his  person  or  his  goods  have  l)een  taken  in  execution 
for  a  larger  sum  than  remained  due  upon  the  judgment,  the  judgment  creditor 
knowing  the  sum  for  wh.ich  execution  is  sued  out  to  be  excessive,  and  his  motive 
being  to  oppress  or  injure  his  debtor.  The  court  or  judge  to  whom  summary 
application  is  made  for  tlie  debtor's  liberation,  can  give  no  redress  beyond 
putting  an  end  to  the  process  of  execution  on  payment  of  the  sum  due,  althougli 
by  the  excess  the  debtor  may  have  suffered  a  long  imprisonment,  and  have  been 
utterly  ruined  in  his  circumstances "  (Lord  Campbell,  Churchill  v.  Siggers.  3 
Ell.  &  Bl.  937;  23  L.  J.  Q.  B.  308;  Jenings  v,  Florence.  2  C.  B.  487;  26  L.  J. 
C.  P.  277). 


§ni8.  PRIVATE   PERSON   CAUSING   ArvRKST.  287 

immaterial  whetlier  or  not  it  issued  for  a  just  cause  of  action, 
or  whether  or  not  the  suit  was  legally  terminated.-^     On 
criminal  process  to  remove  from  New  Hampshire  a  person 
charged  in  Massachusetts  with  obtaining  goods  by  false  pre- 
tences to  that  State  for  trial,  it  was  held  that  if  the  party 
caused  the  defendant  to  be  arrested,  and  made  use  of  the 
process  in  any  manner  to  compel  the  defendant  to  settle  or 
give  a  note,  that  was  a  use  of  process  wholly  unauthorized 
by  law,  and  the  note  thus  procured  was  void.^     The  court  in 
this  case  say  :  "  It  is  wholly  illegal  to  use  the  criminal  process 
of  the  State  to  extort  money,  or  even  to  compel  the  payment 
of  debts.     It  -was  not  provided  for  any  such  purpose.     If  a 
creditor  is  desirous  of  collecting  a  demand  lawfully  due  to 
him,  the  laws  have  provided  remedies  deemed  by  the  legis- 
lature suitable  and  competent  for  that  purpose.     If,  instead 
of  a  resort  to  such  remedies,  he  attempts  to  pervert  the  ciim- 
inal  process  of  the  State,  and  make  it  subservient  to  that 
object,  he  may,  in  thus  depriving  his  debtor  of  his  liberty, 
make  himself  liable  to  damages,  and  in  some  instances  en- 
danger his  own  liberty."  ^  * 


'  Granger  v.  Hill,  5  Sc.  5G1.   4  B.  N.  C.  212;  Heywood  v.  CoUinge,  9  Ad.  & 
E.  268. 

-'  Shaw  V.  Spooner,  9  N.  Hamp.  197. 

^  Referring  to  Buriiham  v.  Spooner,  10  N.  Hamp.  R.  532. 

*  Where  a  del:)tor  is  decoyed  by  false  pretences  from  the  State  in  which  he 
resides  into  another  State,  for  the  purpose  of  enabling  his  creditor  to  bring  an 
action  against  him,  and  on  his  arrival  the  suit  is  commenced,  and  his  body 
attached,  the  whole  proceeding  is  a  fraud  upon  the  debtor,  and  void  (Hill  v. 
Goodrich,  32  Conn.  588;  and  see  Metcalf  y.  Clark,  41  Barb.  45 ;  Goupil  v.  Simon- 
son,  3  Abb.  474;  Stein  v.  Valkeuhuysen,  Ellis,  Black.  &  Ellis.  Go;  Williams  v. 
Bacon,  10  Wend.  63G;  Snelling  v.  Watrous,  2  Paige,  314).  In  Hill  v.  Goodrich, 
supra,  the  delator  was  dtcoyed  from  Boston  to  Plartford  l)y  means  of  two  anony- 
mous letters,  and  by  pretences  -which  were  admitted  to  liave  been  false.  Ells- 
worth, .1.,  in  delivering  the  opinion  of  the  court,  said:  "In  a  case  in  Tyler's 
reports,  a  delator  was  decoyed  from  the  State  of  Vermont  into  that  of  New  York, 
and  there  sued  on  a  debt  barred  by  the  statute  of  limitations  in  Vermont.  When 
he  got  back  to  Vermont  he  sued  the  )iarties  that  had  decoyed  him,  and  recov- 
ered. And  I  think  the  decision  rests  upon  higli  principles  of  justice.  A  like 
case  was  decided  by  .Tudge  Thompson,  in  the  United  States  Circuit  Court.  Tlie 
principle  of  these  cases  is  this:  No  person  has  p.  right  thus  to  decoy  another 
from  one  place  to  another  to  his  injury.  It  is  a  deceit,  and  deceit  and  damage 
are  always  a  good  ground  of  action.  It  has  been  so  held  ever  since  the  case  of 
Pasley  v.  Freeman,  3  T.  R.  .51. 

"It  was  in  this  case  some  damage  to  Hill — the  expense  of  coming — the  loss 
of  time;  and  if  he  were  to  sue  for  damages,  he  could  certainly  recover.     I  leave 


288  FALSE   IMPRISONMEIfT.  §  319. 

4.  Arrest  and  detention  tender  7niUtary  order. 

§  319.  In  relation  to  acts  affecting  military  rank  or 
status  only,  or  offenses  against  articles  of  war  or  military  dis- 
cipline, the  civil  courts  have  uniformly  declined  to  interfere. 
No  acts  of  military  officers  or  tril)unals,  ^vithin  the  scope  of 
their  jurisdiction,  can  be  revised,  set  aside,  or  punished,  civ- 
illy or  criminally,  by  a  court  of  common  law.  Least  of  all, 
will  the  common  law  undertake  to  rejudge  acts  done  Jlag?rinte 
hello  in  the  face  of  the  enemy.  But  for  the  malicious  exer- 
cise by  a  military  officer  of  lawful  authority,  or  for  acts  of  a 
military  officer  or  court  in  excess  of  authority,  though  done 
in  good  faith,  toward  those  in  the  military  service,  and  a 
fortiori  toward  those  who  are  not,  where  the  civil  laws  are 
in  full  force,  the  person  injured  may  obtain  redress  in  the 
ordinary  way  by  suit  against  the  wrong-doer.^  If,  for  in- 
stance, a  military  officer  should  assume  jurisdiction  over 
those  who  were  not  liable  to  enrollment,  he  would  transcend 
his  authority,  and  both  he  and  those  w^ho  acted  under  him 
^vould  be  trespassers.^  In  Massachusetts,  where  a  person 
who  had  not  enlisted  as  a  soldier  was  seized  and  taken 
against  his  will  into  camp,  it  was  held  that  he  might  main- 
tain an  action  for  such  seizure  against  the  officers  and  their 
agents,  and  prove,  in  aggravation  of  damages,  the  fact  of  his 
confinement  in  the  guard  tent,  and  that  the  defendants  were 


the  fact  that  he  was  arrested  on  his  arrival  whoUj-  out  of  the  case.  Suppose  two 
men  combine  to  send  a  man  to  Europe  after  an  estate,  and  it  is  all  a  deception, 
can  he  not  recover  damages  for  it  ?  I  cannot  entertain  any  doubt  upon  the 
point.  It  comes  then  to  this,  whether  a  man  may  be  allured  by  fraud  from  his 
own  State  to  another  jurisdiction,  and  there  be  sued.  I  think  he  cannot  be. 
You  cannot  do  a  wrong,  and  on  that  build  a  right.  It  is  the  same  thing  in 
principle  as  if  Hill  had  been  brought  here  by  force.  I  think  if  there  was  no 
combination,  but  a  single  creditor  should  write  to  a  debtor  in  another  State,  and 
by  a  fraud  get  him  into  the  State,  he  would  be  liable  in  damages;  and  that  if 
there  was  a  combination  for  the  purpose,  it  would  be  a  crime." 

The  plaintiff  being  in  the  custody  of  the  marshal  of  the  King's  Bench,  was 
charged  in  execution  on  an  attachment  which  the  defendant  had  caused  to  be 
issued.  It  was  held  (Lord  Abinger,  C.  B.,  dissenting),  that  there  was  prima 
facie  an  act  of  trespass,  for  which  an  action  was  maintainable,  and  that  if  the 
defendant  were  iustified  under  the  writ,  he  ought  to  plead  that  matter  speciallv 
(Bryant  v.  Glutton,  5  Dowl.  V.  C.  60 ;  2  Gale,  50.) 

'  Tyler  v.  Pomeroj-,  8  Allen,  480,  per  Gray,  J.,  and  cases  cited. 

""  Dariing  v.  Bowen,  10  Vt.  148. 


§  320.  ARREST  UNDER  MILITARY  ORDER.  289 

liable  both  for  the  bodily  suffering  and  for  the  injury  to  the 
plaintiff's  feelings  occasioned  by  the  wrongful  act.^  *  If  the 
authority  be  usurped,  all  acts  done  under  it  Avill,  of  course, 
be  void,  and  the  party  exercising  them  liable  to  prosecution. 
In  French  v.  White,^  the  following  instruction  was  held  cor- 
rect: "If  the  jury  believe,  from  the  evidence,  that  the  de- 
fendant assumino-  to  act  as  an  officer  of  the  so-called  Confed-^ 
erate  government,  and  at  the  time  of  committing  the  wrong 
complained  of  was  engaged  ill  an  effort  to  subvert  the  gov- 
ernment, and  that  in  pursuance  of  such  illegal  and  treason- 
able purpose,  and  as  a'  means  to  its  accomplishment,  arrested 
and  imprisoned  the  plaintiff*,  the  law  would  imply  malice." 

§  320.  In  passing  upon  the  legality  of  acts  done  by 
military  officers  in  the  discharge  of  their  duty,  in  a  period 
of  public  peril,  great  latitude  ought  to  be  allowed.*  Where 
a  military  officer,  stationed  on  the  lines  of  the  territory,  in 
time  of  war,  seized  the  person  of  an  individual  who  was 
transporting  property  towards  the  enemy's  province,  under 
circumstances  to  create  a  reasonable  suspicion  that  he  was 
about  to  transport  the  same  to  the  enemy,  and  immediately 
delivered  him  over  to  his  superior  officer,  the  court  held  that 
the  officer  was  justified.*  During  the  late  rebellion  it  was 
held,  in  Maine,  that,  as  it  was  obvious  that  the  provost  mar- 
shals in  the  several  congressional  districts,  could  not  attend 
to  their  duties  in  arresting  deserters,  and  in  the  drafting  of 


'  Tyler  v.  Pomeroy,  supra;  Stowe  v.  Hey%vood,  7  Allen,  122,  123,.  and  cases 
cited. 

^  4  W.  Va.  170. 

^  Wall  V.  McNamara,  Michaelmas  Term,  1779,  per  Lord  Mansfield. 

*  Clow  agst.  Wright,  Brayt.  118. 

*  The  term  "bodily  infirmity,"  in  the  statute  (of  Vermont),  exempting  from  mil- 
itary duty,  imports  an  absence  of  those  palpable  and  visible  defects  which  evidently 
incapacitate  the  person  from  performing  the  ordinary  duties  of  a  soldier.  But 
of  this,  the  ofiicer  must,  from  the  necessity  of  the  case,  judge  in  the  first  in- 
stance, and  if  he  misjudge,  the  error  is  to  be  corrected,  not  by  action  of  tres- 
pass, but  in  the  manner  pointed  out  by  the  statute  (Darling  v.  Bowen,  supra). 

Where,  in  an  action  for  false  imprisonment,  it  appeared  that  the  plaintiflf, 
who  was  a  soldier,  did  not  return  at  the  expiration  of  his  furlough,  it  was  held 
that  he  was  j/rima  facie  to  be  deemed  a  deserter  and  liable  to  arrest  (Hickey  v. 
Huse,  56  Maine,  493). 

Vol.  L— 19 


290  FALSE   IMPRISONMENT.  §§  321,  322. 

soldiers  without  assistants,  regard  being  bad  to  their  various 
and  onerous  duties,  tliey  would  have  the  right,  and  it  would 
be  their  duty,  to  appoint  agents  or  deputies  to  aid  and  assist, 
and  those  agents  or  deputies,  while  acting  "^vithin  the  line  of 
their  duty,  would  be  entitled  to  the  same  protection  as  their 
several  principals.^  And  in  New  York,  where  in  an  action 
for  imprisonment,  it  appeared  that  the  defendants  were  pub- 
•  lie  officers ;  that  they  were  called  to  act  in  perilous,  arduous, 
and  difficult  times;  that  the  law  imposed  upon  them  a  public 
duty  for  public  purposes;  that  they  were  invested  with  legal 
authority  to  act,  and  were  liable  if  they  neglected  to 
act  in  a  case  where  tliere  was  sufficient  and  probable 
cause ;  and  that  the  discipline  of  the  army  and  safety  of  the 
government  depended  upon  their  fidelity,  it  was  held  incum- 
bent upon  the  court  to  determine  the  character  of  the  defend- 
ant's acts.  The  court  said,  that  it  would  be  a  reproach  to  it  un- 
der such  circumstances,  if,  through  timidity  or  a  desire  to  shirk' 
responsibility,  they  should  leave  to  the  jury  the  question  of 
probable  cause ;  that  it  was  not  only  proper,  but  the  duty  of 
courts,  to  exercise  great  latitude  in  the  review  of  the  acts  of 
such  officers.^ 

§  821.  Where  a  person,  not  subject  to  the  jurisdiction 
of  a  court  martial,  is  arrested  and  detained  for  trial  for  an 
offense  not  within  its  jurisdiction,  the  rights  and  responsi- 
bilities of  the  officer  causing  the  detention,  are  governed  by 
the  rules  of  law  applicable  to  courts  of  special  and  limited 
jurisdiction.^ 

5.  Arrest  hy  officer  without  loarrant. 

§  322.  An  officer  who  has  reasonable  ground  to  suspect 
that  a  felony  has  been  committed,  may  detain  the  person 
suspected  until  the  matter  can  be  investigated  by  the  proper 


*  Hickey  v.  Huse,  5G  Maine,  493. 

'  Hawley  v.  Butler,  54  Barb.  490;  s.  c.  48  lb.  101. 

'  Smith  V.  Shaw,  12  Johns.  257. 


J 


§  322.  ARREST   BY  OFFICER  WITHOUT  WARRANT.  291 

authorities/  altliongli  it  sliould  afterward  appear  that  the 
person  arrested  was  innocent  of  the  charge.^  The  oiScial 
proclamation  of  the  governor  that  a  felony  has  been  com- 
mitted, published  according  to  law,  would  justify  the  arrest 
of  a  person  against  whom  there  w^ere  reasonable  grounds  of 
suspicion.  So  likewise,  where  a  person  accuses  another  of 
having  robbed  him,  and  requests  a  constable  to  arrest  the 
accused,  which  the  constable  does  without  warrant,  the  con- 
stable is  not  liable  because  it  happens  that  the  charge  is  false 
and  that  no  felony  has  in  fact  been  committed.  "It  w^ould 
be  most  mischievous  that  the  officer  should  be  bound  first  to 
try  and  at  his  peril  exercise  his  judgment  on  the  truth  of  the 
charg;e.  He  that  makes  the  charsre  alone  is  answerable.  The 
officer  does  his  duty  in  carrying  the  accused  before  a  magis- 
trate who  is  authorized  to  examine  and  commit  or  discharge."  ^ 
Lord  Hale  *  says :  "  If  A.  be  dangerously  hurt,  and  the  com- 
mon voice  is  that  B.  hurt  him ;  or,  if  C.  thereupon  come  to 
the  constable  and  tell  him  that  B.  hurt  him,  the  constable 
may  imprison  B.  till  he  knows  Avhether  A.  lives  or  dies,  and 
until  he  can  l)ring  him  before  a  justice."  It  is  said  by  another 
old  authority,^  that  where  in  an  action  against  an  officer  it 
appears  that  no  felony  was  committed,  the  question  always 
turns  upon  this: — "Was  the  arrest  bona  fidef  Was  the 
act  done  fairly  and  in  pursuit  of  an  offender,  or  by  design,  or 
malice,  or  ill-will  ?  *  '^'  '""  *  It  w^ould  be  a  terrible 
thing  if,  under  probable  cause,  an  arrest  could  not  be  made. 
■^"  *  *  *  Many  an  innocent  nlan  has  and  may  be  taken 
up  upon  suspicion,  but  the  mischief  and  inconvenience  to  the 
public  in  this  point  of  view  is  comparatively  nothing ;  it  is 
of  gi-eat  consequence  to  the  police  or  the  court."     Althouo-h 

'  Hawk.  p.  0.  b.  2,  cb.  12,  13;  1  Russ.  on  Cr.  594;  Steph.  Cr.  L.  243;  1  Chit. 
Cr.  L.  15,  17;  Beckwith  v.  Philby,  6  B.  &  C.  85;  9  D.  &  R.  487;  Lawrence  v. 
Hedger,  3  Taunt.  14;  Buckley  v.  Gross,  32  L.  J.  Q.  B.  129;  Allen  v.  Wright,  8 
C.  &  P.  522;  Hall  v.  Booth.  3  N.  &  M.  31G:  Regina  v.  Toolev,  2  Ld.  Rayrn.  1296; 
Hobbs  V.  Brandscomb,  3  Camp.  420 ;  Davis  v.  Russell,  5  Bing.  354 ;  Cowles  v. 
Dunbar,  2  Car.  &  P.  505 ;  Burns  v.  Erben,  40  N.  Y.  463. 

=  Eanes  v.  The  State,  6  Humph.  53, 

'  Samuel  v.  Payne,  1  Doug.  360,  per  Lord  Mansfield.  "  P.  C.  587. 

'  1  Burns'  .Just.  130;  Led  with  v.  Catchpole,  Cald,  Cas.  291. 


292  FALSE   IMPRISONMENT.  §§  323,  324. 

where  A.  beiug  liable  to  arrest,  B.  represents  that  he  is  A., 
and  B  is  accordingly  arrested  and  has  no  ground  to  complain 
of  the  imprisonment  l)ronglit  about  by  his  own  act,  yet  after 
he  has  given  notice  that  he  is  not  A.  he  cannot  lawfully  be 
detained  longer  than  is  required  to  ascertain  which  of  his 
statements  is  true.^ 

§  323.  An  officer  who  arrests  an  innocent  party  without 
warrant,  having  at  the  time  reasonable  ground  to  believe 
him  innocent,  will  be  liable.  Where,  therefore,  a  showman 
told  the  defendant,  a  police  constable,  at  a  fair,  that  some 
harness  of  his  had  been  stolen  a  year  previously,  and  that  the 
stolen  harness  was  on  the  plaintiff's  horse,  and  the  constable 
went  to  the  plaintiff  and  asked  him  where  he- got  the  har- 
ness, and  the  plaintiff  replied  that  he  had  bought  it  of  a  man 
he  did  not  know,  and  had  given  him  a  shilling  for  it,  where- 
upon the  constable  arrested  the  plaintiff;  but  it  appeared 
that  the  constable  had  been  acquainted  with  the  plaintiff  for 
twenty  years  as  a  householder  of  respectability ;  it  was  held 
that  there  \Vas  no  reasonable  ground  for  the  arrest,  and  that 
the  constable  was  liable  in  damages  for  false  imprisonment.^ 

§  324.  Where  an  assault  is  committed  within  view  of  a 
constable,  he  may  lawfully  arrest  the  offender  at  the  time, 
or  as  soon  after  as  he  conveniently  can,  not  only  to  prevent  a 
breach  of  the  peace,  but  also  to  secure  the  offender  for  the 
purpose  of  taking  him  before  a  magistrate,"^  and  any  person 
standing  in  his  way,  with  intent  to  hinder  him,  may  be  taken 
into  custody.*  So,  likewise,  a  constable  may  lawfully  enter 
through  an  unfastened  door  in  which  there  is  a  noise  amount- 
ing to  a  breach  of  the  peace,  and  arrest  a  person  engaged  in 
an  affray,  or  in  committing  an  assault  in  his  presence,  and 
detain  him  a  reasonable  time  to  prevent  a  further  assault.^ 

'  Dimston  v.  Paterson,  2  C.  B.  N.  S.  495 ;  26  L.  J.  C.  P.  267. 

*  Hoggv.  Ward,  3  II.  &  N.  417;  37  L.  J.  Exch.  443. 

=  Beg.  V.  Light,  27  L.  J.  M.  C.  1. 

'  Levy  V.  Edwards,  1  C.  &  P.  40. 

'  Com.  V.  Tobin,  108  Mass.  436 ;  post,  §  370. 


§  325.  ARREST  BY  OFFICER  WITHOUT   WARRANT.  293 

If,  liowever,  the  disturbance  lias  entirely  ceased,  the  officer 
and  all  aiding  him  in  the  arrest  or  detention  will  be  liable,^ 
A.,  a  deputy  marshal,  took  B.  before  C,  a  mayor  who  had 
concurrent  jurisdiction  with  justices  of  the  peace,  and  told  C. 
that  B.  had  been  fighting  and  disturl)ing  the  peace,  without 
specifying  when,  where,  how,  or  with  whom.  C.  thereupon 
ordered  that  B,  pay  a  fine  and  be  imprisoned.  B.'s  offense 
was  not  committed  in  the  presence  of  either  A.  or  C.  In  an 
action  by  B,  against  them  for  false  imprisonment,  it  w^as  held 
that  he  was  entitled  to  recover.^  The  continued  wilful  and 
malicious  ringing  of  a  door  bell  tends  to  a  breach  of  the 
peace,  and  if  done  within  view  of  an  officer  he  may  take  the 
offender  into  custody.^  * 

§  325.  An  officer,  in  arresting  another  without  a  warrant, 
should  be  careful  to  keep  within  the  authoiity  conferred 
upon  hiim.f  When  the  law  requires  that  in  such  case  the 
party  arrested  shall  be  immediately  and  without  delay,  con- 


'  1  Hale  p.  C.  587 ;  1  East  P.  C.  303 ;  1  Chit.  Cr.  L.  20. 

'  Prell  V.  McDoaald,  7  Kansas,  426.  '  Grant  v.  Moser,  5  M.  &  G.  123. 

*  A  licensed  nightman  was  arrested  l)y  a  policeman  without  a  warrant  and 
confined  in  a  station  house  in  Baltimore  for  violating  certain  reguhxtions  of  the 
board  of  health  in  relation  to  the  removal  and  deposit  of  uightsoil.  The  night- 
man admitted  that  he  knew  at  the  time  of  liis  arrest  of  the  order  of  the  board  of 
health  designating  particular  localities  for  the  deposit  of  the  nightsoil,  and  that 
he  violated  the  order  because  it  cost  him  more  to  take  the  manure  to  those  places 
than  to  the  place  where  he  was  at  the  time  depositing  it.  It  was  not  pretended 
that  there  was  any  malice  on  the  part  of  the  policeman,  or  that  the  arrest  and 
detention  were  attended  with  circumstances  -of  violence  or  aggravation ;  and  it 
appeared  that  the  nightman  was  released  without  any  unnecessary  delay,  on  his 
own  recognizance.  It  was  lield  that  a  judgment  for  false  imprisonment  could 
not  be  sustained  (Mitchell  v.  Lemon,  34  Md.  176).  When  a  wituess  is  duly 
summoned  to  appear  before  the  grand  jury,  and  he  appears,  but  refuses  to  be 
sworn  or  to  answer  questions,  and  accompanies  his  refusal  with  profanity  and 
disrespectful  conduct  toward  the  jury,  they  can  lawfully  direct  the  officer  in 
attendance  upon  them  to  detain  the  witness  in  his  custody  and  take  him  before 
the  court  in  order  to  receive  its  instruction. 

t  A  person  cannot  lawfully  be  arrested  for  the  breach  of  a  by-law  and  taken 
before  a  magistrate,  unless  such  a  ])o\ver  is  expressly  given  bv  statute  (Chilton 
V.  Lond.  &  Croyd.  Iluil.  Co.  16  M.  &  W.  212;  Reg.  v.  Mann,  23  L.  T.  R.  12). 

Where  a  Ijy-law  imposes  restraints  beyond  what  is  imposed  by  the  general 
law  of  the  land,  a  satisfactory  reason  must  be  shown  for  them,  and  an  express 
statutory  authority  for  their  imposition  (Calder  &  Hebble  Nav.  Co.  v.  Pillin<?,  14 
M.  &  W.  70;  Young  v.  Edwards,  33  L.  J.  M.  C.  227). 

When  tlie  two  parts  of  a  bylaw  are  entire  and  distinct  from  each  other,  it 
may  be  good  iu  part,  and  bad  in  part  (Reg.  v.  Lundie,  31  L.  J.  M.  C.  157). 


294  FALSE  IMPRISONMENT.  §  326. 

veyed  before  the  nearest  magistrate,  and  the  officer  continues 
to  hold  liim  in  custody  arbitrarily,  and  without  process  of 
law,  he  will  be  liable.  In  Green  v.  Kennedy,^  it  was  proved 
that  the  plaintiff  was  arrested  by  a  police  officer  without 
warrant,  in  the  city  of  New  York,  and  having  been  taken 
by  him  before  the  defendant  who  was  superintendent  of 
police,  the  latter  ordered  the  plaintiff  to  be  taken  back,  and 
locked  up ;  which  was  accordingly  done,  and  the  plaintiff 
remained  in  prison  eight  days.  At  the  trial  at  the  circuit, 
a  verdict  was  found  in  favor  of  the  plaintiff  for  $325 
damages,  and  the  general  term  of  the  Supreme  Court  re- 
fused to  disturb  it.  In  Brock  v.  Stimson,'^  it  appeared  that 
the  defendant,  who  was  chief  of  police  of  the  city  of  Cam- 
bridge, found  the  defendant  in  a  public  place  intoxicated, 
disorderly,  and  disturbing  the  peace,  and  detained  him  at  a 
police  station  until  he  became  sober,  and  then  discharg^jd  him. 
It  was  held  that  as  the  statute  ^  directed  the  officer  to  take 
such  a  person  without  a  warrant,  and  detain  him  in  some 
proper  place  until  he  had  so  far  recovered  as  to  render  it 
proper  to  take  him  before  a  court  of  justice,  then  to  take 
him  before  some  justice  of  the  peace  or  police  court,  in  the 
city  or  town  where  he  had  been  found,  and  make  a  complaint 
against  him  for  the  crime  of  drunkenness,  which  the  defendant 
failed  to  do,  he  could  not  justify  the  arrest,  and  that  his 
unauthorized  discharge  of  the  prisoner,  afforded  the  de- 
fendant no  protection  from  liability. 

§  326.  An  officer  who  has  arrested  another  without  proc- 
ess, or  on  void  process,  wrongfully,  or  on  Sunday,  when 
that  is  forbidden,  or  in  any  way  not  authorized  by  law,  can- 
not detain  him  on  valid  process  until  he  has  restored  such 
party  to  the  condition  he  was  in  at  the  time  of  his  arrest.* 


'  46  Barb.  16 ;  and  see  Bacon's  Abr.  Tit.  Trespass,  G  ;  Coats  v.  Darby,  2 
K  Y.  517. 

""  108  Mass.  520. 

'  Of  1869,  ch.  415,  p.  43. 

*  Tlie  time  from  the  rising'  to  the  setting  of  the  sun  was  by  ancient  authors 
called  dies  Solaris,  and  the  night  dies  lunaris.     The  solar  day  was  termed  the 


§  32G.  ARREST  BY  OFFICER  WITHOCTT  WARRANT.  295 

The  law  will  not  permit  liim  to  perpetrate  a  wrong  for  tlie 
purpose  of  executing  process,  nor  to  use  process  for  the  pur- 
pose of  continuing  an  imprisonment  commenced  without  au- 
thority, and  by  his  wrongful  act.^  Where,  therefore,  in  an 
action  for  assault  and  battery  and  false  imprisonment  it  ap- 
peared that  the  defendant,  who  was  a  sheriff  in  Penusylva- 


natural  daj ;  and  the  whole  twenty- four  hours,  consisting  of  the  solar  day  and 
the  night  succeeding  it,  was  called  the  nrtijic'ial  day.  But  afterwards  the  solar 
day  was  termed  the  artificial  day,  and  the  twenty-four  hours  commencing  from 
the  rising  of  the  sun  on  one  day,  and  continued  through  the  night  succeeding, 
was  styled  the  natural  day  (Co.  Litt.  135  a).  Dillcreut  nations  began  the  day  at 
different  times.  The  Jews,  Chaldeans,  and  Babyloneans  at  sunrise;  the  Umbri, 
in  Italy,  at  midday;  the  Egyptians  and  Romans  from  midnight. 

Fox  agst.  Abel,  2  Conn.  541,  was  an  action  of  trespass,  charging  an  assault, 
battery  and  false  imprisonment.  Under  the  plea  of  not  guilty  the  defendants  re- 
lied on  a  justification  by  the  levy  of  an  execution  on  the  body  of  the  plaintitf, 
which  was  made  Sunday  morning,  after  midnight  and  before  daybreak.  The 
case  turned  upon  the  construction  of  the  statute,  which  enacted  that  if  any 
civil  process  should  be  issued  or  served  on  the  Sabbath,  or  Lord's  day,  it  should 
be  void.  At  the  trial  in  the  court  below,  a  verdict  was  found  for  tlie  plaintiff 
under  the  instruction  of  the  court,  that  the  Lord's  day.  within  the  meaning  of  the 
statute,  extended  from  the  next  preceding  to  the  next  succeeding  midnight,  em- 
bracing a  period  of  twenty-four  hours.  The  Supreme  Court,  however,  set  the 
verdict  aside,  a  majority  of  the  judges  holding  that  the  arrest  was  lawful 
(Swift,  Ch.  J.  ;  Edmoud  &  Barnard,  JJ.,  dissenting). 

Shaw  V.  Dodge,  5  N.  Hamp.  463,  was  an  action  of  trespass  for  assault  and 
false  imprisonment.  The  defendant  set  up  in  defense  that  he  acted  under 
legal  process  as  a  collector  of  taxes.  The  plaintiff  replied  that  the  arrest  was 
made  on  the  11th  of 'April,  which  was  the  Lord's  day.  On  the  trial  it  was 
proved  that  the  arrest  was  made  some  time  in  the  night  following  the  10th  or 
early  in  the  morning  of  the  11th.  The  judge  charged  the  jury  that  if  tiiey  be- 
lieved, from  the  evidence,  that  the  defendant  made  the  arrest  at  any  time  after 
tvtfelve  o'clock  in  the  night  following  the  said  10th  day  of  April,  the  plaintiff 
was  entitled  to  recover.  A  verdict  having  been  found  for  the  plaintifl',  the 
Supreme  Court,  in  refusing  a  new  trial,  remarked  that  as  it  was  to  be  presumed 
that  the  Legislature,  when  they  used  the  ternvLord's  day,  intended  it  to  be  un- 
derstood in  its  common  acceptation,  thjit  is  a  cicil  day,  embracing  twenty-four 
hours,  and  commencing  and  ending  at  midnight,  the  instruction  was  correct. 

False  imprisonment,  it  is  said,  will  lie  for  arresting  a  person  on  Sunday. 
But  this  arises  from  the  words  of  the  statute,  which  declares  the  service  to  be 
bad,  and  that  the  party  shall  be  answerable  in  the  same  manner  as  if  he  made 
the  arrest  without  process  (Reynolds  v.  Corp,  B  Caines,  2G7). 

In  Swann  v.  Broome,  3  Burrow,  1595,  Lord  Mansfield  says  that  the  ancient 
Christians  not  only  allowed  all  kinds  of  legal  process  on  Sunday,  but  held  their 
courts  open  for  the  trial  of  causes  down  to  the  beginning  of  the  sixth  century; 
but  that  afterwards  the  practice  was  prohibited  by  sundry  ecclesiastical  canons. 
These  canons  were  received  and  adopted  in  England,  by  their  kings,  in  the 
time  of  the  Saxons.  Edward  the  Confessor,  made  a  constitution  forbidding 
the  holding  of  courts  "  on  all  Sabbath  days,  after  the  ninth  hour,  and  the  whole 
day  foUov^ing,  until  Monday."  These  canons  and  constitutions  were  confirmed 
l>y  William  the  Conqueror;  and  tlms,  says  Lord  Mansfield,  they  became  part  of 
the  common  law  of  England. 

'  Egginton's  Case,  2  Ell.  &  Bl.  728;  Percival  v.  Stamp,  OExch.  171;  Hooper 
V.  Lane,  27  L.  J.  Q.  B.  75;  6  II.  L.  C.  443;  Humphrey  v.  Mitchell,  3  Sc.  51. 


296  FALSE   IMPRISONMENT.  §  327. 

nia,  arrested  the  plaintiff  in  New  York,  and  carried  him  back 
to  Pennsylvania,  and  kept  him  in  close  confinement  there  un- 
til he  was  released  on  bail;  it  was  held  that  as  the  arrest 
was  wrongful,  the  defendant  was  liable  for  all  the  injurious 
consequences  to  the  plaintiff  which  resulted  directly  from  the 
wrongful  act ;  that  the  imprisonment  in  Pennsylvania  was  a 
continuance  of  the  wrong  wliich  was  commenced  by  the  un- 
authorized seizure  in  New  York,  and  that  it  was  not  justified 
by  any  process  which  was  insufiicient  to  justify  the  original 
arrest.^  But  in  North  Carolina,  where  a  person  was  in  prison 
under  a  void  process,  and  the  sheriff,  without  acquainting 
his  deputy,  the  jailer,  with  the  fact  that  he  had  a  valid  proc- 
ess ordered  him  to  keep  the  prisoner,  it  was  held  in  an  ac- 
tion for  false  imprisonment  that  the  possession  by  the  sheriff 
of  valid  process,  was  a  good  defense  for  the  acts  of  his 
deputy.*^ 

§  327.  Where  there  is  a  negligent  escape,  the  officer  may 
retake  the  party ;  or  if  the  defendant  voluntarily  return  be- 
fore suit,  it  is  equivalent  to  a  recaption  on  fresh  pursuit.^ 
But  after  a  voluntary  escape,  if  the  party  was  in  custody  on 
a  writ  of  execution,  he  cannot  be  retaken.^  Nor  can  the 
sheriff  of  a  county  in  one  State  lawfully  pursue  and  retake 
in  another  State  a  prisoner  who  has  escaped  from  his  cus- 
tody.^ Each  State  government  owes  protection  to  its  citizens 
and  sojourners,  and  they  cannot  be  forcibly  taken  out  of  its 
jurisdiction  without  the  consent  of  the  constituted  authori- 
ties. In  the  second  section  of  the  fourth  article  of  the  Con- 
stitution of  the  United  States,  provision  is  made  for  the  sur- 
render of  felons  and  fugitives  from  justice  ;  but  even  this  is 
to  be  done  only  on  application  to  the  executive.* 


'  Mandeville  v.  Guernsey,  51  Barb.  99;  ante^  §  300. 

""  Meeds  v.  Carver,  8  Ired.  398.  '  Butler  v.  Washl)urn,  5  Fost.   251. 

*  Ibid.;  and  see  Powers  v.  Wilson,  7  Cowen,  376;  Little  v.  N.  P.  Bank,  14 
Mass.  448 ;  Pouclier  v.  Holley,  3  Wend.  184 ;  Tanner  v.  Hague,  7  D.  &  E.  430 ; 
Gould  V.  Gould,  4  N.  Hamp.  174. 

'  Bromley  v.  Hutcbins,  8  Vt.  194;  ante,  §  300. 

*  "  If  our  citizens  are  subject  to  be  taken  by  the  officers  of  a  neighboring 


§§  328,  329.      REQUISITES  OF   WARRANT  OF  ARREST.  297 

6.  Requisites  of  warrant  of  arrest. 

§  328.  At  commou  law,  a  warrant  may  be  directed  to 
some  indifferent  person  who  is  not  an  officer.  But  a  magis- 
trate ono-lit  never  to  do  this,  when  an  officer  can  be  con- 
veniently  found  to  perform  the  service,  for  the  reason  that  a 
private  individual  cannot  be  compelled  to  make  service,  or 
be  pnnished  in  case  of  refusal.  In  an  early  case  in  Massa- 
chusetts, it  was  held  that  a  warrant  addressed  to  the  proper 
officers,  and  to  an  individual  by  name,  who  was  not  an  officer, 
was  erroneous,  and  conferred  no  authority  upon  the  indi- 
vidual to  make  the  arrest,  though  a  doubt  was  expressed 
whether  it  might  not  be  lawfully  done  when  no  officer  was 
at  hand  to  perform  the  service,  and  that  fact  was  expressed 
in  the  warrant.^ 

§  329.  A  warrant  should  contain  a  command  or  require- 
ment to  the  person  to  whom  it  is  directed  to  make  the  arrest. 
A  mere  authority  in  the  nature  of  a  license  or  permission  is 
not  sufficient.  The  direction  is  an  essential  part  of  every 
warrant.    Unless  it  is  directed  to  the  sheriff  or  the  constables 


state,  they  are  equally  subject  to  be  taken  and  transported  to  Louisiana  or  Mis- 
souri. Except  in  those  delegations  of  power  invested  in  the  general  government, 
and  those  restrictions  provided  in  the  United  States  Constitution,  each  State  is  a 
national  sovereignty,  and  holds  the  same  relation  to  the  other  States  which  it 
holds  to  other  nations.  As  the  United  States  Constitution  contains  no  provision 
on  this  subject,  our  citizens  are  as  much  subject  to  the  authority  and  pretended 
recapture  by  the  officers  of  England  or  France  as  of  New  York.  This  suggests 
consequences  entirely  at  war  with  all  civil  liberty,  protection,  and  national  in- 
dependence. We  are  entirely  unprepared  to  adopt  so  dangerous  and  fearful  a 
principle  and  practice  as  that  for  which  the  defendant  contends.  It  may  be 
true,  tliough  not  yet  so  decided,  that  inasmuch  as  the  bail  is  the  keeper  of  the 
principal  at  his  own  request,  and  is  said  to  hold  him  as  by  a  string,  and  may 
generally  circumscribe  or  enlarge  his  wanderings,  and  may  arrest  even  after  a 
voluntary  enlargement,  he  might,  by  virtue  of  this  power  and  right  existing  by 
contract  and  license  between  the  parties,  even  arrest  in  another  State.  Tlie  con- 
dition of  an  officer  is  entirely  different.  His  power  is  derived  wholly  from  his 
official  character  and  his  precept,  and  must,  on  principle,  cease  where  his  official 
character  and  precept  cease  to  have  validity  and  jurisdiction.  The  same  may  be 
said  of  the  analogy  mistakenly  attempted  to  be  drawn  from  a  right  acquired  to 
property  by  contract,  or  the  laws  of  the  country  in  which  it  is  situate,  remaining 
good  elsewhere  "  (Collamer,  J.,  in  Bromley  v.  ITutchins,  8  Vt.  194). 

Whether  a  pauper  can  be  forcil^ly  removed  from  one  town  into  another  in 
which  he  has  a  settlement,  except  by  warrant,  ^M^^re  (Backus  v.  Dudley,  3  Conn. 
568). 

'  Com.  V.  Foster,  1  Mass.  488. 


298  FALSE   IMPRISONMBJIT.  §  330. 

of  tlie  county  or  town,  or  some  individual  officer,  or  to  some 
individual  by  name,  who  is  not  an  officer,  it  will  not  answer. 
In  Abbott  V.  Booth, ^  whicb  was  an  action  for  assault  and 
battery  and  false  imprisonment,  the  question  was,  whether  a 
warrant  issued  by  a  justice  of  the  peace  against  the  plaintiff, 
afforded  a  justification  to  the  defendant  for  the  arrest  and 
detention  of  the  plaintiff.  The  defendant  was  not  an  officer, 
and  the  warrant  was  not  directed  to  him  in  the  body  of  it, 
but  "to  the  sheriff  or  any  constable  of  tbe  county"  in  which 
the  magistrate  resided.  The  magistrate,  instead  of  directing 
it  to  the  defendant  by  name,  and  commanding  him  to  execute 
it,  undertook  to  confer  an  authority  by  an  indorsement  on 
the  back  of  the  warrant,  in  the  nature  of  a  permission  or 
license  to  make  the  arrest.  The  judge  at  the  circuit  sus- 
tained the  objection  that  a  justice  of  the  peace  has  no  power 
to  deputize  a  person  not  an  officer  to  make  an  arrest,  unless 
the  warrant  is  directed  to  such  person  by  name ;  and  a  ver- 
dict having  been  found  for  the  plaintiff,  the  judgment  was 
affirmed  on  appeal. 

§  330.  To  justify  an  arrest,  the  name  of  the  party  to  be 
apprehended  must  be  accurately  stated  and  inserted  in  the 
warrant,  before  it  is  delivered  to  the  officer.^*  If  the  name 
is  unknown,  the  warrant  may  be  issued  against  the  party  by 
the  best  description  the  nature  of  the  case  will  allow.^  f  But 
the  description  must  be  sensible  and  intelligible.  Thus,  a 
warrant  directing  the  "associates"  of  persons  to  be  arrested, 
without  mentioning  the  names  of  such  associates,  has  been 
held  illeo^al  and  void  as  to  them.^     And  the  arrest  of  a  mem- 


'  51  Barb.  546. 

=  2  Hale,  114;  Foster,  3l2;  1  Chitty's  Cr.  Law,  39;  State  v.  Weed,  21  N. 
Hamp.  263. 

=  1  Hale,  577;  1  Chitty's  Cr.  Law,  40. 

*  Wells  V.  Jackson.  3  Muuford,  458. 

*  Where  A.  is  arrested  under  a  warrant,  in  w^hich  he  is  incorrectly  named  B., 
all  persons  aiding  in  the  arrest  are  trespassers  (Johnston  v.  Riley,  13  Geo.  97). 

|-  A  warrant  regularly  issued  against  a  person  whose  name  is  unknown,  with 
a  blank  left  for  the  name,  will  jus'tify  the  arrest  of  the  proper  person  (Bailey  v. 
Wiggins,  5  Harring.  4(52). 


§  331.  REQUISITES  OF   WARRANT   OF   ARREST.  299 

ber  of  a  corporation,  on  an  execution  against  tlie  "  president, 
directors,  and  company  of  the  corporation,"  is  a  trespass. 
Such  a  precept  lias  been  characterized  as  "  absurd  and  im- 
practicable." ^  A  general  and  uncertain  description,  is  insuf- 
ficient.^ 

§  331.  Process  for  the  arrest  of  an  individual,  must  so 
describe  the  person  intended,  that  the  officer  will  know  who 
to  arrest,  and  the  party,  whose  liberty  is  threatened,  will 
know  whether  he  is  bound  to  submit.  It  is  not  enough 
that  the  person  in  fact  intended  was  arrested.  The  manda- 
tory part  of  the  warrant  is  that  which  gives  it  efficacy  as  a 
process,  and,  under  that,  the  officer  must  justify.^  Therefore, 
in  an  action  by  A.  against  B.,  for  false  imprisonment,  B.  can- 
not defend  himself  under  a  magistrate's  warrant  against  C, 
although  A,  was  charged  with  felony,  before  the  magistrate, 
and  was  the  person  against  whom  the  warrant  was  intended 
to  issue.*  In  Shadgett  v.  Clipson,^  where  Josiali  was  arrested 
under  process  against  him  by  the  name  of  Johii^  the  officer 
was  held  liable  in  an  action  for  false  imprisonment.  The 
court  said,  that  process  ought  to  describe  the  party  against 
whom  it  is  meant  to  be  issued ;  and  that  the  arrest  of  one 
person  could  not  be  justified  under  a  writ  sued  out  against 
another.  In  Griswold  v.  Sedgwick,^  process  was  issued  from 
a  court  of  equity  to  attach  for  contempt,  Samuel,  and  was 
served  upon  Daniel,  the  person  really  in  contempt,  and 
against  whom  the  order  was  made.  As  soon  as  the  officer 
discovered  his  mistake,  the  prisoner  was  discharged  ;  but  it 
was  held  that  the  officer  was  liable.  And  where  a  w^arrant 
recited  a  complaint  against  John  B.  Miller,  and  commanded 
the  officer  to  arrest  "  the  said  William  Miller,  it  was  held,  in 


'  Parsons,  Ch.  J.,  in  Nichols  v.  Thomas,  4  Mass.  232. 

"^  Clark  V.  Bragdon,  37  N.  Ilamp.  562;  Grumon  v.  Raymond,  1  Conn.  40; 
Sandfortl  v.  Nichols,  13  Mass.  289. 

'  Rex  V.  Newman,  1  Ld.  Ravm.  562;  Griswold  v.  Sedgwick,  6  Cowen,  456; 
s.  c.  1  Wfind.  12G;  Scott  v.  Ely,  4  lb.  555. 

*  Hoye  V.  Bush,  2  Scott  N.  R.  86 ;  1  M.  &  G.  775. 

'  8  East  R.  328.  "^  6  Cow.  450. 


300  FALSE   IMPRISONMENT.  §  332. 

an  action  for  false  imprlsoiimeut,  that  tlie  oflScer  could  not 
lawfully  arrest  John  R.,  although  he  was  the  person  in- 
tended.^ * 

§  332.  AYhen  the  imprisonment  is  sought  to  be  justified 
under  a  warrant  of  commitment,  the  warrant  must  show  the 
grounds  upon  which  it  was  granted. f     Where  a  mittimus 


'  Miller  v.  Foley,  28  Barb.  630 ;  and  see  Melvin  v.  Fisher,  8  N.  Harap.  406 ; 
Crawford  V.  Satchwell,  2  Strange.  1218;  Cole  v.  Hindson,  6  D.  &  E.  234; 
Morgans  v.  Bridges,  1  B.  &  A.  647. 

*  The  facility  with  which  criminals  pass  from  one  part  of  the  country  to  an- 
other where  they  are  wholly  unknown,  the  various  names  they  assume,  and  the 
difficulty  of  ascertaining  their  true  names,  especially  in  the  case  of  foreigners, 
whose  names  are  apt  to  be  misunderstood  and  mispelled,  and  the  importance  of 
promptly  arresting  them,  and  to  that  end,  of  protecting  officers  in  so  doing, 
would  seem  to  furnish  some  reasonai^le  groiij:ds  for  adjudging  that,  when  tlie 
person  who  is  really  meant  is  arrested,  though  by  a  wrong  name,  such  slight  er- 
ror, so  harmless  and  so  easily  rectified,  ought  not  to  subject  the  officer  to  a  suit. 
Should  such  an  exception  be  sustained  it  could,  probably,  only  be  where  the 
name  was  unknown  or  concealed,  or  falsely  given,  and  the  true  party,  against 
whom  the  process  was  issued,  had  ijeeu  arrested  (McMahan  v.  Green,  34  Vt.  69). 

The  misnomer  of  a  town  in  which*  the  jail  is  situate,  in  an  execution,  does 
not  render  the  execution  void,  nor  the  imprisonment  thereon,  in  the  common  jail 
of  the  county,  a  trespass  (Lewis  v.  Avery,  8  Vt.  287). 

A  person  arrested  for  a  breach  of  the  peace,  cannot  maintain  an  action  for 
false  imprisonment  against  the  justice  who  issued  the  warrant,  or  the  constable 
who  served  it,  on  account  of  a  mere  informality  in  the  warrant,  provided  the 
justice  have  jurisdiction  (Cooper  v.  Adams,  2  Blackf.  294). 

Where  a  requisition,  for  a  fugitive  from  justice  is  made  by  the  governor  of 
one  State  upon  the  governor  of  another  State,  and  the  latter  causes  the  fugitive 
to  be  arrested  and  delivered  to  the  person  appointed  for  that  purpose  by  the 
governor  making  the  demand,  an  action  for  false  imprisonment  cannot  be  main- 
tained against  such  person,  on  account  of  irregularity  in  the  warrant  of  arrest 
(Johnston  v.  Vauamringe,  5  Blackf.  311). 

t  In  Hall  V.  Howd  et  al.  10  Conn.  514,  the  defendant  Howd,  as  captain  of  a 
company,  issued  two  warrants,  directed  to  a  constable,  commanding  him.  of  the 
goods  and  chattels  of  the  plaintili  to  levy  and  collect  two  tines  imposed  upon 
the- plaintiff  for  not  performing  military  duty  in  the  company;  and  for  want  of 
such  goods  and  chattels  to  take  the  body  of  the  plaintiff,  and  commit  him  to 
jail.  In  virtue  of  these  warrants,  the  defendant  Austin,  as  a  constable,  with  the 
assistance  of  Bartholomew,  the  other  defendant,  arrested  the  plaintiff,  and 
committed  him  to  prison.  For  these  acts  of  the  defendants,  the  plaintiff 
brought  this  action ;  and  the  question  in  the  case  was,  whether  they  could  be 
justified;  in  otiier  words,  whether  the  warrants  were  such  as  the  defendant 
Howd  had  a  right  to  issue,  and  the  other  defendants  to  execute.  It  was  not 
stated  in  the  warrants  that  the  fines  which  the  constable  was  commanded  to 
collect  had  been  imposed  by  tlie  officer  who  issued  the  warrants.  It  was  stated 
that  the  fines  had  been  legally  imposed,  but  by  whom  did  not  appear  either 
from  the  warrants  theiuselves,  or  ijy  reference  to  any  record  or  proceedings 
whatever.  It  is  true,  they  were  signed  by  Howd  as  captain  of  the  company. 
But  the  neglect  charged  upon  the  plaintiff  took  place,  in  one  instance  more  than 
seven,  and  in  the  other  more  than  eleven  months,  prior  to  the  date  of  the 
warrants.  Although  Howd  might  have  been  tlie  captain  at  the  time  of  issuing 
the  warrants,  it  did  not  necessarily  follow  that  he  was  the  commanding  officer 


§  333.   DUTY  TO   COMMUNICATE   SUBSTANCE    OF    WARRANT.      301 

did  not  show  the  cause  of  commitment,  and  an  action  of 
trespass  therefor  was  brought  against  the  justice,  the  con- 
stable who  executed  the  mittimus,  and  the  persons  who 
assisted  the  constable,  it  was  held  that  the  mittimus  was  no 
justification.^  It  is  however  sufficient  to  state  the  cause  in 
general  terms.  To  a  declaration  for  trespass  and  false 
imprisonment  against  the  high  bailiff  of  a  county  court,  and 
the  governor  of  the  jail,  the  defendants  justified  under  a 
warrant,  under  the  seal  of  the  county  court,  and  directed  to 
them,  whereby  after  reciting  that  the  plaintiff  had  wilfully 
insulted  the  judge,  during  his  sitting,  and  that  thereupon 
the  judge  had  ordered  the  plaintiff  to  be  taken  into  custody, 
and  detained  until  the  rising  of  the  court,  it  "  therefore " 
required  the  defendants  to  arrest  the  plaintiff,  and  imprison 
him  for  seven  days.  It  was  held,  that  the  warrant  was  not 
bad  for  uncertainty,  in  specifying  the  cause  of  commitment, 
or  for  omitting;:  to  describe  the  nature  of  the  insult,  and 
that  the  recital,  that  the  plaintiff  had  insulted  the  judge, 
was  a  sufficient  adjudication  of  the  offense.^ 

V.  Duty  of  officer  to  communicate  substance  of  warrant. 

§  333.  We  have  already  spoken  of  the  duty  of  the  officer 
to  "show  his  warrant  of  arrest  when  asked  to  do  so.^  Al- 
thoug-h  he  is  not  bound  to  exhibit  the  warrant  in  the  first 
instance — especially  where  there  may  be  reason  to  apprehend 
that  it  may  be  lost  or  destroyed — yet  it  is  his  duty  to 
inform  the  party,  where  such  is  the  fact,  that  he  has  a  warrant, 
or  to  make  known  in  some  other  way,  that  he  comes  in  his 
character  as  an  officer  to  execute  legal  process ;  and  not  leave 

six  months  or  a  year  previous.  But  whether  he  was,  or  was  not,  the  hiw  in  a 
case  like  this,  would  not  intend  that  the  fines  were  imposed  by  hina  in  the 
absence  of  any  averment  of  that  kind.  It  was  therefore  held  that  the  warrants 
were  void  and  alTordcd  no  justification  to  the  defendants. 

Where  an  inferior  court  was  held  from  three  weeks  to  three  weeks,  and  the 
writ  was  stated  in  a  justification  to  have  the  body  at  the  next  court  generally,  it 
was  held  good,  and  that  a  certain  day  need  not  be  shown  (Rowland  v.  Veale, 
Cowp.  20j. 

'  Hawkins  v.  Johnson,  3  Blackf.  46. 

=  Levy  V.  Moylan,  1  Pr.  R.  307;  14  Jur.  983;  19  L.  J.  C.  P.  308. 

=  Ante,  §  209. 


302  FALSE   IMPRISONMENT.  §  334. 

the  party  to  suppose  that  he  is  assailed  by  a  wrong-doer. 
This  however  is  where  the  party  submits  to  the  arrest,  and 
not  where  he  makes  resistance  before  the  officer  has  time  to 
give  the  information.  Cases  will  occur,  in  which  the  officer 
will  be  justified  in  laying  hands  on  the  party  before  a  word 
is  spoken.  But  either  before,  or  at  the  moment  of  arrest, 
the  officer  ought  to  say  enough  to  show  the  party  that  he  is 
not  dealing  with  a  trespasser,  but  with  a  minister  of  justice.^  * 

8.  Liability  of  officer  in  execution  of  pi'ocess. 

§  334.  Although  where  it  appears  on  the  face  of  the  proc- 
ess that  the  court  or  magistrate  that  issued  it  had  no  juris- 
diction of  the  subject-matter  of  the  suit,  or  of  the  person  of 
the  party  against  whom  it  is  directed,  it  is  void  not  only  as 
respects  the  court  or  magistrate,  and  the  party  at  whose  in- 
stance it  is  sued  out,  but  affords  no  protection  to  the  officer 
who  has  acted  under  it ;  yet  when  the  court,  issuing  process, 
has  general  jurisdiction,,  and  the  process  is  regular  on  its  face, 
the  officer  is  not  affected  by  an  irregularity  in  the  proceed- 
ings.^ As  a  general  rule,  the  officer  is  bound  only  to  see 
that  the  process,  which  he  is  called  upon  to  execute,  is  in  due 
and  regular  form,  and  issued  from  a  court  having  jurisdiction 
of  the  subject.^  f     In  Nason  agst.  Sewall,^  which  was  an  ac- 

'  Fost.  Cr.  L.  310;  1  Russ.  on  Cr.  451,  514;  Countess  of  Rutland's  Case, 
6  Co.  54;  Mackalley's  Case,  9  Co.  69;  Com.  v.  Field,  13  Mass.  321;  Arnold  v. 
Sleeves,  10  Wend.  514 ;  Bellows  v.  Shannon,  2  Hill,  86. 

""  Savacool  v.Bougliton,  5  Wend.  170;  Gorton  v.  Frizzell,  20  111.  291 ;  Wooster 
agst.  Parsons,  Kirby,  110;  McMahan  v.  Green,  34  Vt.  69. 

=■  Fitzpatrick  v.  Kelly,  cited  3  T.  R.  740;  Cameron  v.  Lightfoot,  2  W.  Bl. 
1190;  Belk  v.  Broadbent,  3  T.  R.  185;  Tarlton  v.  Fisher,  2  Doug.  671;  Smith  v. 
Bowker,  1  Mass.  76;  Haskell  v.  Sumner,  1  Pick.  459;  Nichols  v.  Thomas,  4 
Mass.  232;  Sandford  v.  Nichols,  13  lb.  288;  Wilmarth  v.  Burt,  7  Mete.  257; 
post^  §  461. 

"  Brayt.  119. 

*  "A  regular  officer  is  not  bound  to  exhibit  his  authority  or  process  when  he 
arrests  a  defendant ;  a  special  deputy  is.  But  if  it  were  his  duty  to  exhibit  it 
when  demanded,  his  refusal  would  not  constitute  him  a  trespasser,  if  he  could 
shovv'  that  he  had  a  regular  legal  process  in  his  possession,  which  authorized  the 
arrest"  (Arnold  v.  Steeves,  10  Wend.  514,  per  Sutherland,  J.) 

In  Connecticut,  grand  jurors  who  are  empowered  by  law  to  make  arrests,  are 
known  officers,  and  as  such  are  not  bound  to  declare  their  character,  nor  the 
cause  of  arrest,  until  the  party  submit  to  the  arrest,  or  at  least  demand  the 
cause  (Ward  v.  Green,  11  Conn.  455). 

t  In  an  action  for  false  imprisonment  for  an  arrest  upon  a  writ  of  capias  is- 


g  335.  LIABILITY   IN  THE  EXECUTION   OF   PROCESS.  303 

tion  for  assault  and  hattery,  and  false  imprisonment,  it  was 
pleaded  that  an  action  having  been  brought  against  the 
plaintiff,  in  the  Circuit  Court  of  the  United  States,  and  judg- 
ment obtained  against  him  therein,  and  execution  issued,  he 
was  arrested  and  detained  in  custody  by  the  United  States 
marshal,  which  was  the  trespass  alleged.  The  court  said : 
"  The  authorities  are  full  in  point,  that  trespass  will  not 
lie  in  this  case,  and  these  pleadings  present  a  strong  case 
for  their  application.  By  maintaining  this  action,  the  court 
would,  in  effect,  attempt  to  control  the  process  of  the  Circuit 
Court  of  the  United  States.  It  would  be  very  inconsisten 
that  this  court  should  support  an  action  for  false  imprison- 
ment, for  confinement  on  an  execution  issuing  from  that  court, 
while  that  court  may  refuse  to  relieve  the  prisoner  by  setting 
aside  the  execution,  and  may  even  sustain  an  action  for  an 
escape,  should  he  be  liberated  by  the  jailer." 

§  335.  A  good  deal  of  strictness  has  been  required  in  jus- 
tifying under  process  of  courts  of  limited  jurisdiction.  Many 
cases  may  be  found  wherein  it  is  stated  generally,  that  when 
an  inferior  court  exceeds  its  jurisdiction,  its  proceedings  are 
entirely  void,  and  afford  no  protection  to  the  court,  the  party, 
or  the  officer  who  has  executed  its  process.  This  proposition 
is  undoubtedly  true  in  its  largest  sense  where  the  proceed- 

sued  on  an  informal  affidavit,  the  defendant  may  justify  under  the  writ,  if  it  has 
not  been  set  aside.  Wliere  in  such  case,  the  defendant  justified  under  process  of 
outlawry,  and  the  plaintiff  replied  that  there  was  no  affidavit  of  debt  made  and 
filed,  &c ,  and  the  defendant  rejoined  that  there  was  such  affidavit,  and  set 
out  an  irregular  affidavit,  and  the  plaintiff  demurred;  it  was  held,  t]iat  the  de- 
fendant was  entitled  to  judgment,  trespass  not  being  maintainal)le  wliere  the 
process  is  irregular  merely,  and  not  void  (Riddel  v.  Pakeman,  2  C.  M.  &  R.  ;^0; 
1  Gale,  104;  5  Tyr.  721;. 

The  statute  of  New  Hampshire  which  provides  that  ''no  person  to  whom 
any  list  of  taxes  shall  be  committed  for  collection,  shall  be  liable  to  any  suit  or 
action  by  reason  of  any  irregularity  or  illegality  of  the  proceedings  of  the  town 
or  of  the  selectmen,"  &c..  is  sufficiently  broad  to  embrace  the  acts  which  precede 
the  town  meeting,  as  well  as  its  acts  when  convened;  and  the  acts  of  the  select- 
men who  called  the  meeting,  as  well  as  of  the  board  created  by  it.  But  when 
the  clause  is  added,  "  nor  for  any  cause  whatever,  except  his  own  official  miscon- 
duct," the  statute  seems  to  afford  ample  protection  to  all  acts  of  the  parly  acting 
under  color  of  an  appointment,  except  such  as  amount  to  officuil  misconduct. 
The  statute  works  no  injury  to  those  who  may  deem  themselves  aggrieved  by  the 
forcible  collection  of  an  illegal  tax;  but  sim[tly  limits  their  choice  of  a  remedy, 
and  exempts  innocent  parties  from  the  consequences  of  tlie  official  misconduct 
of  others  (Woods,  J.,  in  Osgood  v.  Welch,  19  N.  Hamp.  105). 


304  faijSe  impkisonmbnt.  §  335. 

ings  are  coram  non  judice,  and  the  process  by  which  the 
officer  seeks  to  make  out  his  justification  shows  that  the.court 
had  not  jurisdiction.  But  it  is  otherwise  when  the  subject- 
matter  of  the  suit  is  within  the  jui'isdictiou  of  the  court,  and 
the  alleged  defect  of  jurisdiction  arises  from  some  other 
cause.  A  distinction  has  long  existed  in  cases  of  this  kind, 
between  the  court  which  exceeds  its  jurisdiction,  and  the 
party  at  whose  instance  it  takes  place,  and  a  mere  ministerial 
officer  who  executes  the  process ;  the  officer  having  a  protec- 
tion which  the  party  has  not,  whether  the  court  be  one  of 
general  or  limited  jurisdiction.  ■^^'  The  right  of  a  ministerial 
officer  to  justify  under  his  process  where  the  court  or  a  party 
cannot,  was  considered  but  not  settled,  in  Smith  v.  Bouchier,  ^ 
decided  in  1734.  Process  was  issued  from  the  Chancellor's 
Court  of  Oxford  against  Smith,  who  was  arrested  and  com- 
mitted to  jail.  The  proceedings  were  instituted  without 
proving  what  was  requisite  to  give  the  court  jurisdiction. 
The  plaintiff  who  procured  the  proceedings,  the  vice-chan- 
cellor who  held  the  court,  and  the  officers  who  executed  the 
process,  were  all  sued  by  the  defendant  Smith  for  false  im- 
prisonment.    They  united  in  their  plea  of  justification,  and 


>  Savacool  v.  Boughton,  5  Wend.  170.  =2  Strange,  993. 

*  We  have  seen,  ante^  §  307,  that  where  a  person  has  been  arrested  and  im- 
prisoned by  virtue  of  process  Avhich  has  been  set  aside  as  irregular,  all  concerned 
in  the  suing  out  of  the  process,  are  liable  for  an  assault  and  false  imprisonment; 
but  the  officer,  who  had  no  option  l)ut  to  obey  the  process,  is  protected  by  it  (Par- 
sous  V.  Lloyd.  2  W.  Bl.  844).  But  it  is  dift'erent  where  the  process  is  set  aside 
not  for  irregularity,  but  for  error.  "In  the  one  case,  a  man  acts  irregularly  and 
improperly  ^\'ithout  the  sanction  of  any  court.  He  therefore  takes  the  conse- 
quences of  his  own  unauthorized  act.  But  where  he  relies  upon  the  judgment 
of  a  competent  court,  he  is  protected  "  (Williams  v.  Smith,  14  C.  B.  N.  S.  596 ; 
Cooper  V.  Harding.  7  Q.  B.  928;  Philips  v.  Biron,  1  Str.  509). 

It  has  been  held  in  Indiana,  that  in  order  to  justify  a  constable  in  making  an 
arrest  under  process  issued  by  a  justice,  the  writ  need  not  have  been  founded  on 
an  affidavit.  But  it  is  otherwise  as  to  a  justification  by  a  party  or  the  justice 
(Davis  V.  Bush,  4  Blackf.  330). 

It  is  not  false  imprisonment  to  bring  up  a  prisoner  on  habeas  corpus  issued  by 
a  judge  who  has  no  jurisdiction  of  the  case  (The  State  v.  Guest,  6  Ala.  778). 

An  arrest  by  an  officer  under  an  execution  after  the  expiration  of  the  time 
within  which  the  execution  was  made  returnable,  will  make  the  officer  a  tres- 
passer (Stoyel  V.  Lawrence,  3  Day,  1 ;  Lofland  v.  Jefi"erson,  4  Harring.  303). 

Where  an  order  of  arrest  commands  an  officer  to  arrest  a  person  and  take  him 
forthwith  before  a  justice,  the  officer  will  not  be  justified  in  taking  his  prisoner 
to  jail  (Hynes  v.  Jungren,  8  Kansas,  391). 


J 


§  335.  LIABILITY    IN    THE    EXECUTION   OF   PROCESS.  305 

were  all  pronounced  guilty.  According  to  Strange,  the  court 
remarked  tliat  the  officer  and  jailer  might  have  been  excused 
if  they  had  justified  without  the  plaintiif  and  vice-chancellor. 
And  it  appears  from  the  case,  as  reported  in  Hardwicke's 
Cases,  ^  that  the  point  of  the  officer's  liability  was  not  settled; 
for  it  is  there  said  that  there  was  no  need  of  giving  a  distinct 
opinion  as  to  the  action  lying  against  them.  In  Hill  v.  iiate- 
man,^  the  plaintiff  had  been  fined  under  the  game  law,  and 
was  immediately  sent  to  Bridewell  without  any  attempt  to 
levy  the  j)enalty  upon  his  goods.  This  the  justice  had  no 
right  to  do,  and  he  was  held  liable  for  the  imprisonment ; 
but  the  constable  was  justified.  It  is  to  be  understood  from 
this  case  that  the  justice  had  not  jurisdiction  to  issue  process 
to  commit  the  party  until  he  had  attempted  to  levy  the  fine 
upon  his  goods ;  but  that  after  he  had  made  that  attempt 
without  success,  he  had  authority  to  commit  him.  The  proc- 
ess, though  unauthorized  by  the  circumstances  of  the  case, 
would,  under  other  circumstances,  have  been  proper.  The 
issuing  of  the  process  was  a  matter  within  the  justice's  juris- 
diction.    This  was  sufficient  for  the  officer's  justification.* 

'  P.  69.  ="  1  Strange,  710. 

*  lu  New  Hampshire,  a  collector  of  taxes  is  not  obliged  to  make  unsuccessful 
search  for  property  in  order  to  lay  the  foundation  for  an  arrest  of  the  delinquent 
tax  payer.  He  is  not  bound  to  seek  the  party  at  his  own  home  rather  than  else- 
where, to  enforce  his  warrant,  but  may  enforce  it  wherever  he  can  do  so  without 
embarrassment  or  inconvenience.  In  Osgood  v.  Welch,  19  N.  Hamp.  105,  which 
was  an  action  for  assault  and  false  iaiprisonment,  the  plaintiff  proposed  to  prove 
that  the  defendant  said  he  hoped  he  should  find  the  plaintiff  away  from  home, 
because  he  wanted  to  arrest  him  instead  of  taking  his  property;  that  when  the 
plaintiff  was  arrested,  the  parties  went  toward  the  plaintiff's  house;  that  the 
plaintiff'  then  exhiljited  certain  property  of  sufficient  value  to  satisfy  the  tax,  tell- 
ing the  defendant  that  the  i^roperty  belonged  to  the  plaintiff,  and  was  unencum- 
bered, and  asking  the  defendant  to  take  it  for  the  tax,  and  release  the  plaintiff' 
from  arrest,  but  that  the  defendant  refused  so  to  do.  A  verdict  having  been 
found  for  the  defendant  in  the  court  below,  the  Supreme  Court  refused  to  dis- 
turi)  it.  It  seems  to  have  been  understood  in  New  Hampshire  that  if  goods  are 
attached  on  the  original  writ,  the  creditor  may  at  his  pleasui'e,  abandon  the 
attachment  and  levy  upon  the  body.  How  it  might  be  in  such  case,  if  property 
were  actually  tendered,  with  indemnity  as  to  the  ow^nership,  need  not  now  be 
considered.  Nothing  short  of  this,  can  exonerate  the  debtor  from  arrest.  The 
analogy  from  the  case  of  a  creditor  or  sheriff"  to  that  of  the  collector,  is  very 
strong.  And  we  perceive  no  reason  for  a  distinction  between  the  two  cases. 
But  the  officer  having  once  made  the  arrest,  has  no  power  to  distrain  the  prop- 
erty (Rev.  Sts.  of  N.  Hamp.  ch.  45,  §  8;  Kingsley  v.  Hall,  9  N.  Hamp.  190;  But- 
ler V.  Washburn,  5  Post.  251).  In  Vermont,  to  entitle  the  debtor  to  redress 
where  he  is  committed  on  execution. when  the  execution  should  have  been  levied 
Vol.  I.—  30 


30G  FALSE   IMPmSONMENT.  §  335. 

In  Sliergold  v.  Ilolloway,  ^  a  justice  issued  a  warrant  on  a 
complaint  for  not  paying  wages,  and  the  defendant,  a  con- 
stable, arrested  Sliergold  on  it.  He  was  sued  for  this  arrest. 
The  court  said  tbe  justice  had  no  authority  in  any  instance 
to  proceed  by  warrant,  a  summons  being  the  only  process. 
Accordingly,  the  constable  could  not  justify,  as  he  was  pre- 
sumed to  know  that  under  no  circumstances  could  a  warrant 
be  issued  in  such  a  case.  Therefore  the  court  said  that  there 
was  no  pretence  for  such  a  jui'isdiction.  This  decision  would 
doubtless  have  been  different  if  it  had  appeared  that  under 
any  state  oT  things,  a  proceeding  by  warrant  was  allowable 
in  such  a  case;  for  then  the  court  avouM  assume  for  the 
officer's  protection,  that  such  a  state  of  things  did  exist,  or  at 
least,  he  should  not  be  required  to  judge  whether  it  did  or 
not.  Warner  v.  Shed  ^  was  an  action  of  trespass  and  false 
imprisonment  against  a  constable  for  arresting  and  imprison- 
ing the  23laintiff  by  virtue  of  a  warrant  of  commitment  issued 
under  the  hands  and  seals  of  three  justices  of  tbe  peace. 
The  warrant  stated  that  the  plaintiff  and  another  had  been 
convicted  at  a  court  of  special  sessions  for  an  assault  and 
battery,  and  it  mentioned  the  three  justices  before  whom  the 
plaintiff"  had  been  brought.  These  justices  had  jurisdiction 
in  ceitaiu  cases  of  breaches  of  the  peace,  and  had  power  to 
fine  and  imprison  for  the  same.  They  had  jurisdiction,  there- 
fore, of  the  subject-matter;  and  it  was  held  that  that  was 
sufficient  to  justify  the  constable  in  serving  the  mitfi?ni(s,and 
that  he  was  not  bound  to  examine  into  the  validity  of  the 
proceedings  and  of  the  process.  ^' 


on  his  property,  it  must  appear  that  the  debtor  was  ready  to  acquiesce  in  the  tak- 
ing of  his  property  (Warner  v.  Stockwcll,  i)  Vt.  9).  In  the  case  of  taking  the 
body  for  taxes,  in  order  to  make  the  tax  collector  liable,  there  must  have  been  a 
tender  of  property  (Flint  v.  Wiiitney,  28  Vt.  G80).  An  arrest  upon  a  warrant 
for  the  collection  of  taxes  is  in  the  nature  of  an  arrest  at  common  law  upon  final 
process  (Butler  v.  Washburn,  5  Fost.  2ol). 

'  Ibid.  1002.  =  10  Johns.  138. 

*  In  Massachusetts,  under  the  statute  of  1850,  ch.  314,  the  jurisdiction  of 
justices  of  the  peace  in  the  examination  and  trial  of  persons  charged  with  crim- 
inal offenses,  was  taken  away,  and  the  same  was  transferred  to  certain  new 
officers,  called  trial  justices,  leaving  to  justices  of  the  peace  only  the  authority  to 
receive  complaints  and  issue  warrants  for  the  apprehension  of  alleged  criminal 


§  336.  LIABILITY    IX    Tin-:    EXECUTION  OF   PROCESS.  307 

§  33G.  An  officer  wLo  has  an  execution  in  common  form, 
authorizing  and  requiring  liim  to  take  the  property  of  the 
debtor  to  satisfy  the  execution,  and  for  want  thereof  to  arrest 
the  debtor,  -will  be  protected  in  arresting  and  committing 
the  debtor,  although  before  he  is  arrested  he  shows  to  the 
officer  his  discharge  under  the  insolvent  law.  It  is  easy  to 
see  that  it  would  paralyze  the  action  of  an  officer,  and  often 
defeat  the  service  of  legal  process,  if  he  were  bound  to  stop 
and  try  the  genuineness  and  validity  of  a  certificate  of  dis- 
charge under  a  bankrupt  or  insolvent  law.  The  certificate 
may  not  be  genuine  or  legally  authenticated,  and  yet  the 
officer  can  take  no  evidence,  nor  even  put  the  debtor  himself 
under  oath  to  prove  it.  Wilmarth  v,  Burt,^  was  an  action  of 
trespass  against  a  deputy  sheriff,  for  arresting  the  plaintiff 
on  an  execution.  The  plaintiff  sought  to  avoid  the  officer's 
justification,  by  proving  that  he  had  obtained  a  certificate  of 
discharge  under  the  insolvent  law  of  Massachusetts,  which 
discharge  was  obtained  long  after  the  date  of  the  contract  on 
which  the  judgment  was  recovered,  and  that  he  exhibited 
his  discharge  to  the  defendant  at  the  time  of  the  arrest.  It 
did  not  distinctly  appear  whether  the  judgment  on  which 
the  execution  issued,  was  rendered  before  or  after  the  plaint- 
iff's discharge,  but  theie  was  ground  to  presume  that  it  was 
rendered  some  time  after.  The  court  said  it  was  very  clear 
that  the  officer  could  take  no  notice  of  such  a  discharge,  for 
two  reasons:  1st.  If  the  debtor  had  his  discharge  before  the 

offenders,  returnable  before  any  of  the  trial  justices  of  the  same  county.  After 
the  passage  of  this  act,  therefore,  the  issuing  of  a  warrant  by  a  justice  of  the 
peace,  directing  an  arrest  of  an  individual  upon  a  criminal  charge,  and  that  the 
party  be  taken  before  a  justice  of  the  peace,  for  examination  or  trial,  would  be 
an  act  unautliorized  by  law;  and  the  process  would,  upon  the  face  of  it,  show 
such  want  of  jurisdiction  as  to  the  process,  that  if  in  execution  thereof,  the  party 
was  actually  arrested  and  held  for  trial  before  a  justice  of  the  peace,  the  ofticer 
thus  arresting  the  party  and  holding  him  for  trial,  as  well  as  the  magistrate  who 
issued  such  warrant,  would  be  liable  therefor  in  an  action  of  trespass.  In  Stet- 
son V.  Packer,  7  Gush.  5G2,  which  was  an  action  of  trespass  for  illegal  arrest,  it 
appeared  that  tlie  warrant  commanded  the  officer  to  take  the  prisoner""  Ijefore  A., 
or  some  other  justice  of  the  peace  within  and  for  the  county,"  and  that  A.  was 
both  a  trial  justice  and  a  justice  of  the  peace.  It  was  held  that  the  officer  had 
no  right  to  take  the  prisoner  before  any  other  trial  justice,  and  if  he  did  so,  the 
officer  and  all  aiding  him  would  be  lial)le  as  trespassers. 

*  7  Mete.  257;  and  see  Ewtirt  v.  Jones,  14  Mees.  &  W.  774;  post,  §  4G8. 


308  FALSE     IMPRISONMENT.  §  337. 

rendition  of  the  judgment,  lie  bad  an  opportunity  to  plead  it 
by  way  of  defense,  and  if  he  did  not  do  so,  it  was  to  be  pre- 
sumed that  it  was  not  valid.  2d.  If  the  judgment  was  ren- 
dered after  the  dischar2:e,  it  mio;ht  have  been  founded  on  a 
cause  of  action  which  accrued  after  the  discharge,  and  the 
officer  could  not  by  possibility  know  that  it  was  not  so.  If 
the  plaintiff  in  such  case  has  any  remedy,  it  is  not  against 
the  officer  who  has  simply  executed  the  regular  precept  of  a 
court  having  jurisdiction,  but  by  applying  for  his  discharge 
out  of  custody,  or  by  audita  querela^  or  by  an  action  on  the 
case  against  the  party  who  thus  wrongfully  armed  the  officer 
with  power  to  arrest  him,  upon  the  ground  of  its  being  on 
his  part  a  malicious  arrest. 

§  337.  The  arrest  of  a  privileged  person  upon  regular 
process,  does  not  form  an  exception  to  the  general  rule  that 
a  ministerial  officer  is  protected  in  the  execution  of  process, 
whenever  there  is  jurisdiction  of  the  subject-matter,  unless 
he  act  maliciously,  if  the  process  be  regular  on  its  face,  and 
does  not  disclose  the  want  of  jurisdiction.^  The  decisions  on 
the  question  of  privilege  all  seem  to  be  based  on  the  prin- 
ciple that  where  the  process  is  regular  and  effective,  the 
sheriff  is  not  bound  to  take  notice  of  a  claim  of  privilege 
from  arrest,  which  is  personal  to  the  party,  inasmuch  as  he 
is  not  vested  with  authority  to  judge  and  determine  the 
validity  of  the  claim,  which  may  properly  be  contested.  The 
process  justifies  the  officer  in  making  the  arrest,  so  far  as 
being  a  trespasser  is  concerned,  and  the  party  claiming  the 
exemption  must  avail  himself  of  it  before  a  tribunal  compe- 
tent to  determine  its  validity.  This  may  be  done  by  a  mo- 
tion to  the  court  to  quash  or  to  discharge,  in  the  case  of  re- 
turnable process ;  and  where  the  process  is  not  returnable, 
by  an  application  for  relief  to  some  tribunal  having  jurisdic- 
tion to  afford  it.^     This  question  of  privilege  is  of  course  not 

'  state  V.  Hamilton,  9  Mo.  784. 

""  Wood  V.  Kinsman,  5  Vt.  588;  Brown  v.  Getchell.  11  Mass.  11;  Cable  v. 
Cooper,  15  Johns.  152;  Carle  v.  Delesdernier,  13  Maine,  363;  Plummer  v.  Den- 
nett, 6  Greeulf.  421 ;  Com.  v.  Kennard,  8  Pick.  133. 


§  339.  LIABILITY    IN    THE    EXECUTION  OF   PROCESS.  300 

applicable  when  the  exemption  is  not  personal,  but  general, 
including  all  persons  whatever.^  ^' 

§  338.  An  exemption  from  arrest,  whether  existing  at 
common  law  or  by  statute,  is  a  personal  privilege,  and  may 
be  waived  by  the  party  entitled  to  it ;  which  he  will  be 
deemed  to  have  done  unless  he  avail  himself  of  the  first  op- 
portunity to  assert  it  and  obtain  his  liberty.*^  Woods  v. 
Davis  ^  was  an  action  of  trespass  against  a  collector  of  taxes 
for  arresting  the  plaintiff  and  detaining  h.im  an  hour  and  a 
half,  until  the  tax  was  paid  by  the  friends  of  the  plaintiff, 
the  arrest  having  been  made  at  the  annual  town  meeting  at 
which  the  plaintiff  was  entitled  to  vote.  At  the  time  of  the 
arrest  nothing  was  said  by  him  about  his  voting,  or  his  right 
to  vote,  nor  did  he  claim  exemption  from  arrest  on  the  ground 
of  his  privilege  as  a  voter ;  but  it  appeared  that  the  defend- 
ant, at  the  plaintift^'s  request,  sent  for  a  friend  of  the  plaintiff', 
who,  after  consultation  with  the  plaintiff,  paid  the  tax  at  the 
latter's  request.  It  was  held  that  as  a  waiver  and  voluntary 
submission  on  the  part  of  the  plaintiff  was  fairly  to  be  pre- 
sumed, the  action  could  not  be  maintained. 

§  339.  If  the  wrong  person  be  arrested,  the  officer  will 
be  liable,  unless  the  person  arrested  was  himself  the  cause  of, 
the  arrest,  by  giving  false  information.^  B.  having  been  ar- 
rested under  a  writ  against  A.,  stated  that  she  was  the  person 
named  in  the  writ.  It  was  held  that,  although  B.  might  not 
be  entitled  to  maintain  an  action  against  the  officer  for  the 
arrest,  yet  that  the  latter  could  not  justify  detaining  B.  after 
he  had  notice  that  she  was  not  the  real  party .^ 

■  Green  v.  Morse,  5  Maine,  250;  Parsons  v.  Loyd,  3  Wils.  341. 

"  Dow  V.  Smith,  7  Vt.  4(55 ;  Fletcher  v.  Baxter,  2  Aiken,  224. 

'  34  N.  Hamp.  328.         "   Davies  v.  Jenkins,  11  M.  &  W.  755;  see  post,  §  352. 

'  Dunston  v.  Peterson,  2  C.  B.  N.  S.  495;  26  L.  J.  C.  P.  267. 

*  Where  the  captain  of  a  military  company  imposed  a  fine  upon  a  minor  who 
was  a  soldier  therein,  and  issued  a  warrant  for  the  collection  of  tlie  fine,  by  vir- 
tue of  which  the  minor  was  imprisoned,  and  the  statute  conferred  upon  the  cap- 
tain HO  power  to  issue  warrants  for  the  collection  of  fines,  excejiting  against 
persons  of  full  age;  in  an  action  of  trespass  brought  by  the  minor  against  the 
captain,  it  was  held  that  he  was  entitled  to  recover  (Mallory  v.  Bryant,  17  Conn. 
178;  but  see  Merriman  v.  Bryant,  14  lb.  200). 


310  FALSE   IMPRISONMENT.  §§  340-42. 

*§  340.  Where  the  plaintiff's  attorney  gives  the  officer 
notice  not  to  execute  a  ca.  sa.,  if  the  arrest  be  made  after  the 
receipt  of  the  notice,  it  will  constitute  a  false  imprisonment ; 
and  notice  from  the  attorney  that  the  action  is  settled,  or 
that  the  execution  is  withdrawn,  is  a  notice  not  to  make  the 
arrest.^ 

9.    Private  person  aiding  officer  in  arrest. 

§  341.  Sheriffs  and  other  officers  are  empowered  by  law 
to  require  suitable  aid  in  the  execution  of  their  office  in 
apprehending  criminals.  When  a  person  is  called  upon  by 
the  sheriff"  to  assist  him  in  arrestincr  another,  he  is  not  at  lib- 
erty  to  refuse.  Nor  can  he  demand  of  the  sheriff  an  inspec- 
tion of  the  warrant  under  which  he  is  acting,  in  order  to  see 
by  what  authority  he  is  proceeding,  and  whether,  in  his 
judgment,  it  will  be  safe  to  assist  him.  It  is  sufficient  that 
he  is  the  sheriff  (or  deputy  sheriff'),  a  known  public  officer. 
The  person  thus  called  on  is  protected  by  the  call  from  being- 
sued  for  rendering  the  requisite  assistance.*^ 

§  342.  A  sheriff  may  be  guilty  of  a  trespass,  while  those 
w^ho  are  acting  by  his  command  are  held  excused.  If  the 
'act  itself  be,  in  the  first  instance,  lawful,  but  becomes  g,  tres- 
pass ah  initio  by  some  subsequent  misconduct  of  the  sheriff, 
as  for  not  returning  the  writ,  it  would  be  obviously  unjust 
to  hold  the  assistants  liable  for  such  constructive  trespass. 
And  there  are  probably  other  cases  where  the  command  of 
the  sheriff  would  be  a  defense  to  those  aiding  him,  though 
the  sheriff  himself  might  not  be  justified.  Statutes  empow- 
ering the  sheriff  to  require  suitable  aid  for  the  suppression 
of  riots,  and  for  the  arrest  of  persons  violating  the  peace,  are 
only  in  affirmance  of  the  pommon  law,  by  which  the  sheriff 
might  raise  the  ^96»sse  comitatus^  or,  in  other  words,  such  a 
number  of  the  men  of  the  county  as  were  necessary  for  his 
assistance  in  the  execution  of  the  king's  writs,  quelling  riots, 

'  Dutcher  v.  Hinder,  28  L.  J.  Exch.  28;  Withers  v.  Parker,  4  H.  &  N.  524. 
=*  Bac.  Abr.  Tit.  Sherifif,  n.  3;  Main  v.  McCarty,  15  III.  441. 


§  344.       PRIVATE    PERSON   AIDING   OFFICER  IN   ARREST.  311 

nppreliending  traitors,  robbers,  &c}  In  McMahoii  v.  Green,^ 
it  appeared  that  the  plaintiff  was  arrested  by  a  deputy  sheriff 
upon  a  warrant  issued  against  John  McManus  for  an  assault 
with  intent  to  commit  rape ;  that  the  defendant  was  required 
by  the  officer  to  assist  him  in  making  the  arrest,  and  that  in 
obedience  to  such  command  he  accompanied  the  officer  in 
making  the  arrest,  and  in  committing  the  plaintiff  to  prison. 
The  plaintiff's  name  was  John  McMahon,  instead  of  John  Mc- 
Manus, and  upon  this  ground  lie  claimed  that  the  warrant 
was  void  against  him,  and  that  the  defendant  was  liable. 
Judgment,  liowever,  having  been  rendered  for  the  defendant, 
it  was  affirmed  by  the  Supreme  Court. 

§  343.  But  where  the  original  act  of  the  officer  in  the  serv- 
ice of  civil  process  is  manifestly  illegal,  those  aiding  him 
will  be  trespassers,  though  they  act  by  his  command.  In 
Hooker  v.  Smith,^  the  defendants,  in  their  plea  in  bar,  de- 
scribed the  process,  and  stated  that  the  sheriff  requested 
them  to  assist  him  in  executing  it ;  and  in  the  replication,  the 
truth  of  which  was  admitted  by  a  demurrer,  it  was  alleged 
that  the  defendants  entered  the  plaintiff' 's  dwelling  by  forci- 
bly breaking  the  outer  door  for  the  purpose,  and  with  the 
intent,  to  execute  therein  the  writ  of  execution  by  arresting 
his  body.  The  court  remarked  that,  as  the  defendants,  with 
the  full  knowledo:e  that  the  sheriff  was  about  to  do  an  ille2;al 
act,  united  with  him  in  committing  it,  they  must  share  with 
him  in  the  consequences  ;  and  that  a  contrary  doctrine  would 
enable  a  sheriff,  under  color  of  civil  process,  to  add  to  his 
own  physical  power  to  accomplish  an  illegal  object  the  power 
of  a  lawless,  but  wholly  irresponsible  mob. 

§  344.  All  who  aid  and  assist  in  the  unlawful  confine- 
ment of  another  are  liable  for  the  false  imprisonment, 
although  they  had  no  hand  in  the  original  arrest,  and  did 
not  know  that  it  and  the  imprisonment  were  illegal.'*     It  has 


'  Hammond's  N.  P.  63,  65.  "^  34  Vt.  69. 

"  19  Vt.  151.  *  Griffin  v.  Coleman,  38  L.  J.  Exch.  137;  4  II.  &  N.  2G5. 


312  FALSE   IMPRISONMENT.  §§  345,  34G. 

been  held,  tliat  if,  while  A.  is  iiiilawfully  imprisoned  by  B., 
C.  commits  an  assault  upon  him,  C.  is  guilty  of  the  false  im- 
prisonment as  well  as  B.,  and  that  if  A.  sue  both  separately, 
the  pendency  of  one  suit  may  be  pleaded  in  abatement  to 
the  other.^ 

10.    What  constitutes  an  arrest. 

§  345.  An  arrest  is  usually  made  by  taking  the  person 
into  actual  custody.  The  common  practice  is  to  put  the 
hand  upon  the  individual,  and  any  touching,  however  slight, 
is  sufficient.  In  an  anonymous  case,^  Chief  Justice  Holt  said : 
"If  a  window  be  open,  and  a  bailiff  put  in  his  hand  and 
touch  one  against  whom  he  has  a  warrant,  he  is  thereby  his 
prisoner."  In  another  anonymous  case,^  it  is  said  :  "  A  bailiff' 
having  a  warrant,  perceiving  a  debtor's  hand  out  of  the  win- 
dow, seized  it,  and  the  court  held  it  a  sufficient  arrest." 

§  346.  But  no  manual  touching  of  the  body  or  actual 
force  is  necessary  to  constitute  an  arrest,  if  the  party  be 
within  the  power  of  the  officer,  and  submits  to  the  arrest.* 
In  Williams  v.  Joues,^  Lord  Hardwicke  said :  "  It  does  not 
follow  that  an  arrest  cannot  be  made  without  touching  the 
person  ;  for  if  one  goes  into  a  room  and  tells  the  occupant 
that  he  arrests  him,  and  locks  the  door,  there  is  an  arrest." 
And  in  Horner  v.  Battyn,^  the  arrest  was  held  good,  although 
mere  words  were  used,  because  the  debtor  submitted  to  the 
arrest.  So,  where  the  defendant,  for  purposes  of  extortion, 
had  placed  a  writ  in  the  hands  of  a  sheriff's  officer,  with  in- 
structions to  arrest  the  plaintiff*  unless  he  would  give  up 
some  property,  and  the  officer,  finding  his  way  to  the 
plaintiff's  sick  bed,  produced  the  writ  and  demanded  the 
property,  telling  the  plaintiff  that  unless  it  was  delivered  up 
to  him  a  man  would    be   left    with  him,  and  the  plaintiff* 

'  Boyce  v.  Bayliffe,  1  Camp.  CO.     See  Day  v.  Porter,  2  M.  &  Rob.  151. 
"^  7  Mod.  8;  K.  B.  1701.  '  K.  B.  1G75,  reported  in  1  Vent.  306. 

*  Butler  V.  Washburn,  5  Post.  251 ;  Jenner  v.  Sparks,  1  Salk.  79;  B.  c.6  Mod. 
173;  Gold  v.  Bissel,  1  Wend.  210;  Pike  v.  Hanson,  9  N.  Hamp.  R.  491. 
"  2  Strange,  1019.  "  BuUer's  N.  P.  62. 


§347.  WHAT    CONSTITUTES    AN    ARREST.  313 

yielded  to  tlie  pressure  and  gave  up  the  property,  it  was  held 
that  these  facts  amounted,  in  judgment  of  law,  to  an  arrest.^  '"^ 

§  347.  It  will  have  been  observed  from  what  we  have 
already  said  on  this  subject,  that  there  need  not  be  any  very 
formal  declaration  of  an  arrest.  If  the  officer  goes  for  the 
purpose  of  executing  his  warrant — has  the  party  in  his  pres- 
ence and  power,  and  the  party  so  understands  it,  and  in 
consequence  thereof  submits,  and  allows  the  officer  to  direct 
his  movements  without  resistance,  or  the  officer  receives 
money  or  property  in  discharge  of  his  person — it  is  in  law  an 
arrest.  Accordingly,  where  in  an  action  of  trespass  for  as- 
sault and  false  imprisonment,  it  appeared  that  the  plaintiff 
did  not  intend  to  pay  her  tax  unless  compelled  by  an  arrest ; 
that  the  collector  was  so  informed ;  that  he  then  proceeded 
to  enforce  the  collection  of  the  tax — declared  tliat  he  arrested 
her — and  she,  under  that  restraint,  paid  the  mou-ey ;  it  was 
held  that  this  was  a  sufficient  arrest  and  imprisonment  to 
sustain  the  action,^  Where,  howevei',  upon  a  magistrate's 
warrant  being  shown  to  the  plaintiff,  the  latter  voluntarily, 
and  without  compulsion,  attended  the  constable  who  had 
the  warrant  to  the  mao;istrate,  it  was  held  that  there  was  no 
sufficient  imprisonment  to  support  the  action.^  But  in  this 
case  there  was  no  declaration  of  any  arrest,  and  the  warrant 
was  in  fact  used  only  as  a  summons.     Unless  the   decision 


'  Granger  v.  Hill,  5  Scott.  561. 

'  Pike  V.  Hanson,  supra  ;  and  see  Wood  v.  Lane^  5  C.  &  P.  774. 

'  Arro^smith  v.  Le  Mesurier,  2  N.  R.  211. 

*  In  an  action  for  false  imprisonment,  it  was  proved  that  the  plaintiff  and 
one  of  his  sons  were  passing  the  house  of  a  constable  in  a  wagon,  when  the  latter 
came  out  and  said,  "  I  have  a  warrant  for  jou  and  your  two  sons."  The  jilaintitT 
asked  him  for  what?  He  said,  "For  stealing  pumpkins."  The  plaiutiti"  got 
partly  out  of  the  wagon,  when  the  constable  said,  '"You  can  go  home,  put  up 
your  horses,  take  your  tea,  and  come  down."  The  plain tiif  did  so,  employed  a 
lawyer,  and  with  him  and  his  two  sons  went  to  the  constalile's  house,  called  him 
out,  and  said,  "  Here  are  your  prisoners."  The  constable  said,  "  You  move  on, 
and  I  will  overtake  you."  They  went  forward,  and  the  constable,  overtaking 
them  at  tlie  house  of  the  justice,  they  entered  together.  After  some  discussion 
before  the  justice,  the  matter  was  adjourned  without  requiring  bail.  On  the  ad- 
journed day  the  plaintitl"  appeared,  an  examination  was  had,  and  the  case  dis- 
charged. It  was  held  that  there  had  been  a  sufficient  arrest  to  sustain  the  action 
(Searls  v.  Viets,  2  Thompson  &  Cook,  N.  Y.  Supm.  Ct.  224). 


814  FALSE   IMPRISONMENT.  §§  348,  349. 

can  be  sustained  upon  this  distinction,  it  must  be  regarded 
as  of  doubtful  authority.  \ 

§  348.  If  bare  words  be  relied  upon  to  make  an  arrest, 
there  must  exist  the  power  to  take  immediate  possession  of 
the  body,  and  the  party's  submission  thereto.  Genner,  a 
bailiff,  had  a  ^varraut  against  Sparks,  and  went  to  him  in  his 
yard,  told  him  he  had  a  warrant  for  him,  and  said,  "  I  arrest 
you."  Sparks  had  a  fork  in  his  hand  and  kept  the  bailiff 
from  touch  big  him.  Neither  the  bare  power  to  arrest,  nor 
the  words  "  I  arrest  you,"  constituted  an  arrest.  But  the 
court  said  if  the  bailiff  had  touched  him,  that  would  have 
been  an  arrest.^  Where,  liowever,  a  person  being  notified 
by  an  officer  that  he  came  to  arrest  him  under  a  warrant, 
submitted,  the  officer  went  home  with  him,  stayed  there  all 
night,  and  the  next  day  took  him  before  a  magistrate,  it  was 
held  that  this  constituted  an  arrest,  although  the  party  was 
not  actually  deprived  of  his  liberty,  nor  personally  guarded 
by  the  officer.^  So,  where  a  bailiff  baviug  a  writ  against  a 
person,  met  him  on  horseback  and  said  to  him,  "  You  are 
my  prisoner,"  upon  which  he  tm-ned  back  and  submitted,  this 
was  held  to  be  a  good  arrest,  though  the  bailiff  never  touched 
him.  But  if,  upon  the  bailiff'  saying  these  words,  the  party 
had  fled,  it  would  not  have  been  an  arrest,  unless  the  bailiff* 
had  laid  hold  of  him.^ " 

11.  Detention  hy  officer  of  partij  arrested. 

§  349.  An  officer  is  not  bound,  in  order  to  retain  his  ar- 
rest, to  keep  his  hands  upon  his  prisoner,  or  to  secure  him. 
He  may  allow  reasonable  lil)erties  to  a  debtor  in  custody; 
and  as  between  him  and   the  debtor,  the  latter  cannot  com- 

*  Genner  v.  Sparks,  1  Salk.  78;  2  Esp.  N.  P.  374. 
^  Courtoy  v.  Dozier,  20  Geo.  3G9. 

'  Homer  v.  Battyn.  BuUer's  X.  P.  G2;  Russeu  v.  Lucas,  1  C.  &  P.  153; 
Chinn  v.  Morris.  2  C.  &  P.  361 ;  Pocock  v.  Moore,  Ilv.  &  M.  321 ;  Strout  v.  Gooch, 
8  Greenl.  127 ;  Gold  v.  Bissel,  1  Wend.  210.      ' 

*  To  constitute  an  arrest  of  the  person,  the  oiBcer  must  have  the  custody  and 
control  of  the  defendant's  body,  at  least  potentially,  and  he  must  claim  that  con- 
trol, and  unless  ii  is  submitted  to,  must  put  it  in  itctual  exercise. 


§  351.      DETENTION  BY   OFFICER  OF   PARTY  ARRESTED.  315 

plain  of  liLerties  wliich  be  requested,  or  to  whicli  lie  assented, 
provided  tliere  was  no  abandonment  of  the  arrest.^  AVhere, 
at  tlie  time  a  debtor  was  arrested  upon  a  writ  procured  by 
affidavit,  the  magistrate  signing  the  writ  was  temporarily- 
absent  from  the  county,  and  the  debtor  notified  the  officer 
that  he  wished  to  be  taken  before  the  magistrate  for  exam- 
ination, it  was  held  that,  although  the  officer  had  no  right  to 
commit  him  forthwith  to  jail,  yet  that  he  might  detain  the 
debtor  a  reasonable  time  to  await  an  examination,  and  need 
not  make  himself  the  personal  keeper  of  the  debtor  during 
the  period  of  such  delay,  but  might  use  the  common  jail  for 
that  purpose.^  "'^ 

§  350.  When  the  arrest  is  made  at  a  distance  from  home, 
the  officer  has  a  right  to  start  with  his  prisoner  at  any  hour 
he  may  choose,  or  his  business  may  require,  and  in  such 
weather  as  he  may  find  at  the  time ;  provided  he  does  not 
needlessly  expose  the  prisoner's  health,  or  do  him  a  personal 
injury.  It  will  not  answer  unnecessarily  to  restrict  an  officer 
in  these  particulars,  and  therefore  no  certain  rules  can  be 
laid  down.^ 

§  351,  Where  a  person  is  convicted  and  sentenced  to  im- 
prisonment by  a  court  having  no  jurisdiction,  an  action  will 
lie  against  those  who  keep  the  accused  in  confinement.  "*  The 
plaintiff,  being  a  debtor  to  a  bankrupt's  estate,  was  sum- 
moned to  appear  and  be  examined  before  the  district  court 
of  bankruptcy  in  which  the  fiat  was  prosecuted ;  but  refus- 
ing to  come,  was  arrested  by  the  defendant,  the  messenger  of 
the  court,  under  a  warrant  of  the  commissioner,  and  brought 
up  in  custody  to  be  examined.     At  the  conclusion  of  his  ex- 


'  Butler  V.  Washburn,  5  Fost.  251.  ""  Wliitcorab  v.  Cook,  38  Vt.  477. 

'  Butler  V.  Washburn,  suj)ra.  *  Patterson  v.  Prior,  18  Incl.  440. 

*  In  New  .Jersey,  in  an  action  for  assault  and  false  imprisonment,  it  appeared 
that  a  criminal  warrant  having  been  issued  by  a  justice  in  one  county,  and  in- 
dorsed by  a  justice  of  anotlier  county  wherein  the  arrest  was  made,  the  oiiicer 
refused  to  take  his  prisoner  before  the  indorsing  justice,  but  took  him  without 
actual  force  into  the  iirst  county  before  the  justice  wdio  issued  the  warrant;  and 
it  was  iield  that  the  ollicer  was  liable  (Francisco  v.  Slate,  4  Zabr.  N.  J.  20;  Rev, 
Sts.  of  N.  J.  327,  §12). 


316  FALSE  IMPRISONMENT.  §  352. 

amination,  to  wliich  the  plaintiff  voluntarily  submitted,  the 
commissioner  said  tliat  he  was  discharged  on  payment  of  the 
costs  incurred  in  bringing  him  up ;  and  a  memorandum  to 
that  effect  was  indorsed  on  the  warrant.  The  defendant  in 
consequence  detained  the  plaintiff  until  the  costs  incurred  in 
bringing  him  up  were  taxed  and  paid  by  him  under  protest. 
It  was  held,  first,  that  the  foregoing  memorandum  amounted 
to  an  order  to  detain  the  plaintiff  until  the  costs  were  paid ; 
secondly,  that  the  commissioner  had  no  jurisdiction  under 
the  bankrupt  acts  to  make  such  an  order,  and  would  have 
been  liable  to  the  plaintiff"  in  an  action  of  trespass  for  the 
imprisonment  under  it,  and  that  consequently  the  defendant, 
who  must  be  assumed  to  have  known  of  such  want  of  juris- 
diction, was  also  liable.  It  was  further  held  that  if  the  com- 
missioner had  had  jurisdiction  to  commit  the  plaintiff,  the 
defendant  would  have  been  protected,  though  he  had  no  war- 
rant under  the  hand  and  seal  of  the  commissioner.^ 

§  352.  In  England,  it  has  been  held  that  if  the  wrong 
man  is  arrested  and  handed  over  to  a  jailer,  the  jailer  is  liable 
for  the  wrongful  imprisonment,  notwithstanding  he  had  no 
means  of  ascertaining  the  identity  of  the  party  brought  to 
him  with  the  person  named  in  the  warrant,  and  could  not, 
consistently  Avith  his  duty,  have  refused  to  receive  and  de- 
tain him ;  though  if  the  party  thus  wrongfully  detained  did 
not  apprize  the  jailer  of  the  fact,  only  nominal  damages  could 
be  recovered.^  But  the  jailer  wall  be  protected  in  the  regu- 
lar and  proper  discharge  of  his  duty,  although  the  original 
arrest  was  wrongful.  In  Oliet  v.  Bessey,^  the  plaintiff  had 
been  arrested  by  process  without  the  jurisdiction  of  the 
court.  He  w^as  carried  within  the  liberty  and  delivered  to 
the  defendant,  who  was  the  jailer  of  the  liberty;  and  the 
question  was,  whether  false  imprisonment  lay.     The  court, 


'  Watson  V.  Bodell,  14  Mees.  &  W.  57;  14  L.  J.  X.  S.  281 ;  0  Jur.  G'26. 
^  Aaron  V.  Alexander,  3  Camp.   35;  Griffiu  v.   Coleman,  4   II.  cc  N.  265;  28 
L.  J.  Exch.  134;  cmte,  §  339. 
'  T.  Jones,  214. 


§  353.  officer's  return.  317 

after  hearing  mncli  argument,  lield  tliat  tlie  action  did  not 
lie  against  the  jailer ;  for  he  had  done  no  wrong  to  the  party, 
bnt  that  only  which  lielonged  to  his  office,  which  did  not 
o])lige  him  to  incjulre  whether  the  first  arrest  was  tortious  or 
not ;  and  that  even  if  he  had  been  informed  of  the  tortious 
takino^  he  ou2:ht  to  have  detained  the  prisoner,  beino;  deliv- 
ered  to  him  ^vith  a  good  warrant  for  the  arrest.  And  in 
Smith  v^  Shaw,  ^  which  was  an  action  against  the  officer  com- 
manding the  provost  guard  at  Sackett's  Harbor  during  the 
last  war  between  the  United  States  and  Great  Britain,  for 
unlawfully  detaining  the  plaintiff  in  custody,  the  Supreme 
Court,  in  affirming  the  judgment  of  the  court  below,  which 
was  for  the  plaintiff,  intimated  that  if  the  suit  had  been 
against  the  provost  marshal,  he  would  not  have  been  liable 
for  detaining  the  plaintiff;  the  situation  of  a  provost  marshal 
in  such  a  case  belns:  somewhat  analogous  to  that  of  the 
pound  keeper  in  Badkin  v.  Powell,^  where  it  was  held  that 
he  was  not  a  trespasser  merely  for  receiving  a  distress,  though 
the  orlo-iual  takino;  was  tortious,  because  he  was  bound  to 
take  and  keep  whatever  was  brought  to  him.  * 

12.   Officer'' s  return. 

§  353.  Public  ministerial  officers  are  required  to  set 
forth  the  acts  done  by  them,  in  order  that  the  court  may 
judge  of  their  sufficiency.^  An  arrest  upon  process,  of  which 
return  is  to  be  made,  cannot  in  general  be  justified  without 
such  return.^  f    The  return  is  not  necessarily  to  be  construed 


'  12  Johns.  257.  ""  Cowp.  476. 

'  Henry  v.  Tilson,  19  Vt.  447;  post,  §§  373,  491. 

*  Poor  V.  Tasjc^art,  37  N.  Hamp.  544;  Middleton  v.  Price.  1  Wils.  17;  s.  c.  2 
Strange,  1184;  Stiorland  v.  Govett,  5  B.  &  C.  485;  Tubbs  v.  Tukey,  3  Cush.  438. 

*  Tlie  unlawful  detention  of  a  prisoner  after  he  is  entitled  to  his  discharge 
is  a  fresh  impriaonuient  (Withers  v.  Ileuley,  Cro.  Jac.  379). 

The  removal  of  a  person  from  one  part  of  a  prison  to  another  in  which  he  is 
not  legally  confined,  is  a  trespass  (Cobbett  v.  Grey,  4  Exch.  729;  19  L.  J.  Exch. 
137).  But  it  seems  that  the  Secretary  of  State  is  not  liable  in  trespass  if  a  per- 
son be  so  removed  under  a  general  order  made  by  him  for  the  classidcatiou  of 
the  prisoners  which  he  had  no  legal  authority  to  make  (lb.). 

t  In  an  action  of  trespass  alleging  an  unlawful  arrest,  it  was  proved  that  the 
arrest  was  made  on  the  13th,  under  a  legal  wariant,  which  was  duly  returned  on 


318  FALSE    IMPRISONMENT.  §§  354,  355. 

as  setting  out  that  the  arrest  was  made  on  tliat  (lay;  hut 
merely  that  the  party  had  been  arrested,  and  that  the  officer 
then  had  him  in  custody  and  produced  him  to  the  magistrate 
for  examination.  On  what  particular  day  the  arrest  was 
made,  or  what  particular  proceedings  were  had  for  the  safe 
keeping  of  the  party,  or  for  insuring  his  presence  before  the 
magistrate  at  the  time  of  the  return  of  the  warrant,  whether 
that  time  be  selected  by  the  officer  at  his  pleasure,  or  by 
agreement  between  him  and  the  party,  are  immaterial  mat- 
ters not  necessary  to  be  stated  in  the  return.^ 

§  354.  Where  the  arrest  of  a  party  can  be  justified  only 
upon  its  being  made  to  appear,  on  the  return  of  the  officer, 
that  he  can  find  no  goods  whereon  to  levy,  and  this  is  not 
stated  by  him  in  express  terms,  but,  taking  into  considera- 
tion the  whole  of  the  return,  that  conclusion  appears  to  be  a 
direct  and  unavoidable  inference  from  its  statements,  it  will 
be  sufficient.  In  the  case  where  this  question  arose,  it  was 
not  suggested  by  the  plaintiff  that  in  fact  any  goods  existed, 
which  could,  upon  search  or  inquiry,  have  been  found  where- 
on the  officer  might  have  levied.  The  plaintiff  only  relied 
upon  a  supposed  imperfection,  not  in  the  discharge  by  the 
officer  of  his  duty,  but  in  the  account  which  he  rendered  of 
its  performance.^ 

§  355.  Where  a  statute  requires  an  officer,  in  commit- 
ting a  person  to  jail,  to  certify,  upon  the  copy  of  his  warrant 
left  with  the  jailer,  "  his  doings  in  relation  to  the  delin- 
quent," his  certificate  must  contain  all  the  facts  which  justify 
him  in  making  the  arrest  and  imprisonment ;  and  he  will  not 
be  permitted,  in  an  action  against  him  for  false  imprison- 

the  22d,  with  a  proper  return  of  the  arrest  thereon.  It  did  not  appenr  that 
there  was  any  other  arrest,  or  that  there  were  any  proceedings  of  an  unlawful 
character  connected  with  or  subsequent  to  it.  to  render  the  defendants  liMble  as 
tresiDussers  by  reason  of  them.  It  was  held  that  an  arningeuient  entered  into 
between  the  othccr  and  the  person  arrested,  for  his  appearance  at  a  future  day, 
agreed  upon  between  them  as  the  day  of  hearing,  was  legal  and  proper  (Poor  v. 
Taggart,  37  N.  Hamp.  544). 

'  Poor  V.  Taggart,  mpra.  =  Snow  v.  Clark,  9  Gray,  190. 


§  356.  officer's  rstuen.  319 

ment,  to  supply  these  facts  by  parol/  A  general  allegation 
that  he  "  has  proceeded  according  to  law,"  is  insufficient 
where  any  statement  of  his  proceedings  is  necessary.^  So 
likewise,  a  general  statement  is  not  sufficient  to  show  tliat  he 
has  given  the  party  the  notice  required  by  law.^* 

§  356.  The  official  return  of  a  public  officer  \^  prima  facie 
evidence  in  the  officer's  favor  in  the  prosecution  or  defense  of 
a  collateral  action.  It  is  admissible  on  the  ground  of  the 
general  credit  due  to  the  return  of  an  officer  when  it  is  his 
duty  to  make  a  return.  But  it  is  subject  to  contradiction  by 
third  persons,  because  they  are  neither  parties  nor  privies  to 
the  transaction,  and  because  they  have  no  remedy  against 
the  officer  for  a  false  return.  It  is  also  open  to  contradic- 
tion collaterally,  as  against  tbe  officer,  even  by  a  party  to  the 
process,  to  avoid  circuity  of  action.^  In  Barrett  v.  Copeland,^ 
which  was  an  action  for  assault  and  battery  and  false  impris- 
onment, the  defendant  pleaded  the  general  issue,  and  also  a 
plea  in  justification  that  he  made  the  arrest  as  constable,  on 
an  execution  against  the  plaintiff;  and  he  gave  in  evidence 
the  execution  and  his  return  thereon.  The  plaintiff,  in  order 
to  impeach  the  return,  offered  to  prove  that  he  was  away 
from  home,  and  not  where  he  could  have  been  arrested  on 
tlie  execution  referred  to,  at  the  time  the  return  purported 
to  show  that  the  defendant  had  first  arrested  the  plaintiff. 
This   evidence   ha  vino;-   been    excluded   at  the  trial  in  the 


'  Henry  v.  Tilson,  19  Vt.  447.  ^  Briggs  v.  Whipple,  7  Vt.  15. 

'  Heury  v.  Tilson,  supra. 

'  Gyfibrd  V.  Woodgate,  11  East,  296;  Hathaway  v.  Goodrich,  5  Vt.  65;  Stan- 
ton V.  Hodges,  6  Vt.  66. 

'  18  Vt.  67. 

*  Where  collectors  of  taxes,  in  committing  a  person  to  jail,  neglected  to  make 
upon  the  copy  of  the  warrant  left  with  the  jailer  a  scrawl  or  letters  "  L.  S.,"  in- 
dicating the  place  of  the  seal  upon  the  warrant,  it  was  held  that  such  omission 
did  not  make  tlitm  lialjle  as  trespassers  (Gordon  v.  Clifford  et  al.  8  Fost.  403). 
Eastman,  J  :  "This  error  is,  at  best,  a  mere  nonfeasance  in  copying  the  war- 
rant; a  clerical  mistake  in  not  putting  upon  tlie  copy  some  hieroglyphics  indicat- 
ing that  tlierc  was  a  seal  upon  the  warrant,  and  its  place.  All  the  language  of 
the  warrant  is  correctly  copied,  and  the  indorsements  required  by  statute  prop- 
erly made,  and  we  do  not  think  that  tliis  error  in  making  the  copy  can  or  should 
render  the  officers  trespassers  ah  initio.'''' 


320  FALSE    IMPEISONMENT.  §§  357,  358. 

county  court,  and  judgment  rendered  for  tlie  defendant,  it 
was  reversed  by  the  Supreme  Court. 

13.  Hesponsihility  of  magistrates. 

§  357.  The  official  oath  required  by  law  is  requisite  to 
legal  induction  into  office;  and  the  incumbent  who  has  been 
duly  elected  or  appointed  to  such  office,  and  assumes  its  du- 
ties without  taking  the  oath,  is  not  an  officer  cle  jure^  and 
cannot,  therefore,  in  an  action  against  him  for  false  imprison- 
ment, justify  under  his  official  character.  Third  persons  are 
not  supposed  to  have  the  means  of  knowing  whether  the 
officer  has  properly  qualified.  As  to  them,  he  is  an  officer 
de  faeto^  and  his  acts  cannot  be  brought  in  question.  But 
the  officer  has  no  such  immunity ;  as  he  must  always  know 
whether  or  not  he  has  complied  with  the  requirements  of 
the  law.  ^ 

§  358.  In  an  action  of  trespass  against  a  magistrate  for 
arrest  and  imprisonment  under  a  supposed  judicial  decision, 
there  is  but  a  single  question,  to  wdt : — whether  the  defend- 
ant had  jurisdiction  to  render  the  judgment  under  which  the 
plaintiff  was  arrested.  If  he  had  such  jurisdiction,  he  can- 
not be  charged  in  the  suit.  The  court  Avill  not  inquire 
wdiether  or  not  the  power  has  been  wisely  exercised,  or 
^.vh ether  the  decision  is  right  or  wrong,  in  form  or  substance,^ 
In  Yates  v.  Lansing,  ^  the  liability  of  judges  to  answer  to  in- 
dividuals affected  by  their  decisions,  for  damages,  was  con- 
sidered ;  and  it  was  there  show^n  that  from  the  earliest  ages 
of  the  common  law  it  has  always  been  held  that  no  judge  is 
answerable  in  a  civil  action,  on  account  of  any  judgment  ren- 
dered by  him  as  a  judge.  To  this  rule  there  is  but  one  ex- 
ception. If  the  judge  has  assumed  to  act  as  such,  in  a  case 
where  he  has  no  jurisdiction,  his  character  of  judge  fui^nishes 
him  no  protection.     The  jurisdiction  of  courts  and  judges 

'  Courser  v.  Powers,  34  Vt.  517;  Newman  v.  Tiernan,  37  Barb.  159. 
=  Burnham  v.  Stevens,  33  N.  Hamp.  247. 
=  5  Jolms.  283 ;  affirmed,  9  lb.  395. 


§  359.  RESPONSIBILITY    OF  MAGISTRATES.  321 

and  otliers  exercising  judicial  powers,  may  be  very  general, 
or  very  limited ;  limited  as  to  place,  as  to  persons,  as  to  sulj- 
jeet-matter,  and  as  to  tlie  course  of  proceedings ;  and  a  failure 
of  jurisdiction,  in  any  of  these  respects,  is  fatal  to  any  de- 
fense which  rests  on  the  assumption  that  the  party  attempted 
to  be  charged  was  acting  in  a  judicial  capacity."^" 

§  359.  We  have  spoken,  in  a  previous  chapter,^  of  the 
well  established  principle,  that  when  a  magistrate  or  other 
officer,  having  a  special  and  limited  jurisdiction,  issues  a  war- 
rant to  take  the  person  or  property  of  another,  he  must  show 
upon  the  face  of  his  proceedings  that  he  has  jurisdiction ; 
that  nothing  will  be  intended  in  his  favor;  and  that  it  must 
appear  that  he  has  jurisdiction  over  the  subject-matter,  the 
person  and  the  process.^  An  action  having  been  brought  to 
recover  a  fine  imposed  by  a  court  martial,  it  was  held  that  a 
court  martial,  being  a  court  of  limited  and  sj^ecial  jurisdic- 
tion, the  law  would  intend  nothing  its  favor;  that  he  w^ho 
sought  to  enforce  its  sentences  or  justify  its  judgments  must 
set  forth  affirmatively  and  clearly  all  the  facts  necessary  to 
show  that  it  was  legally  constituted  and  had  jurisdiction.^ 
Where  a  special  act  provided  that  "  all  warrants  alleging  any 
offense  to  have  been  committed  within  said  city  (Augusta), 


■  Ante,  §  54.  ^  See  Hall  v.  Howd.  10  Conn.  514, 

'  Brooks  V.  Adams,  11  Pick.  441. 

*  In  Mather  v.  Hood,  8  Johns.  45,  it  was  held  that  a  record  of  conviction  of 
a  justice,  under  the  act  of  New  York  to  prevent  forcible  entries  and  detainers, 
•  was  not  traversable;  and  that  if  it  appeared  that  the  justice  had  jurisdiction  and 
proceeded  regularly,  it  was  conclusive,  and  a  bar  to  a  suit  against  him  for  any- 
thing adjudged  and  within  his  jurisdiction.  But  it  was  not  held  in  that  case, 
nor  is  there  any  case  that  sanctions  the  doctrine,  that  by  force  of  a  conviction 
before  a  magistrate  the  party  affected  by  it  may  not  show,  even  in  a  collateral 
action,  where  the  conviction  is  set  up  as  a  defense,  or  comes  in  question,  that 
the  magistrate  did  not  have  jurisdiction  of  the  person  against  whom  the  convic- 
tion operates  (see  opinion  of  Spencer,  Ch.  J.,  in  Bigelow  v.  Stearns,  19 
Johns.  39). 

In  New  York,  it  was  held,  in  an  early  case,  that  in  an  action  against  a  justice 
of  the  peace,  for  assault  and  battery  and  false  imprisonment,  the  defendant 
might  justify  by  virtue  of  a  judgment  and  execution,  without  showing  that  he  ac- 
quired jurisdiction  of  the  person  of  the  party,  or  alleging  that  the  party  ap- 
peared before  him,  or  that  he  was  a  resident  of  the  county  at  the  time  the 
summons  was  issued  (Hoose  v.  Sherrill,  16  Wend  33,  Bronson,  J.,  dissenting). 

Where  a  magistrate  does  not  have  jurisdiction,  all  who  advise  or  act  with 
him,  or  execute  his  process,  are  trespassers  (Von  Ketler  v.  Johnson,  57  111.  109). 
Vol.  I.—  21 


322  FALSE   IMPRISONMENT.  §§  3G0,  361. 

shall  be  made  returnable  before  said  court  "  (municipal  court), 
and  the  warrant  was  not  made  returnal^le  before  that  court, 
althougb  the  offense  was  therein  alleged  to  have  been  com- 
mitted within  Augusta,  it  was  held  that  it  conferred  no  au- 
thority on  the  magistrate  to  hear  and  dej^ermine  the  subject- 
matter  of  the  complaint,  or  on  the  officer  to  arrest  and  return 
the  alleged  offender  before  such  magistrate,  and.  that  for  their 
acts  in  this  particular  they  were  trespassers.^ 

§  360.  Judicial  acts  exercised  by  persons  whose  judicial 
authority  is  limited  as  to  locality,  must  appear  to  have  been 
done  within  the  locality  to  wdiich  the  authority  is  limited. 
In  King  V.  Chilverscoton,^  where  two  justices  made  an  order 
for  the  removal  of  a  pauper  and  his  family,  and.  having  men- 
tioned in  their  order  two  counties,  Warwick  and  Coventry, 
afterward  described  themselves  as  justices  of  the  peace  for 
the  county  aforesaid,  without  designating  which  of  the  coun- 
ties, although  it  w^as  admitted  that  if  they  bad  been  justices 
of  the  county  of  Warwick,  and  had  so  described  themselves, 
their  order  w^ould  have  been  good,  yet,  as  it  did  not  appear 
upon  the  face  of  the  order  that  the  justices  who  made  it  had 
jurisdiction,  it  was  holden  void.* 

§  861.  A  magistrate  cannot  (excepting,  perhaps,  in  the 
ease  of  a  mere  vagrant)  lawfully  detain  a  known  person  to 
answer  a  charge  not  yet  made  against  him.  The  justice 
should  have  an  information  regularly  before  him,  that  he 
may  be  able  to  judge  whether  it  charges  any  offense  which 
the  person  ought  to  answer.'^     Accordingly,  Avhen  a  person 

•  Wills  V.  Whittier,  45  Maine,  544.  "  8  Term.  R.  178. 
'  Rex  V.  Birnie,  1  Mood.  &  R.  160;  5  C.  &  P.  20G. 

*  A  similar  decision  was  afterward  made  in  the  case  of  The  King  v.  The  Inhab- 
itants of  Moor  Critchel!,  2  East,  66.  So  in  Starr  v.  Scott,  8  Conn.  480,  it  was 
held  that  a  certificate  of  the  commissioners  upon  an  insolvent  debtor's  estate, 
which  did  not  contain  an  averment  that  they  had  <;iven  the  notice,  wliich,  by 
statute,  they  were  required  to  give,  was  void,  and  afforded  no  protection  to  the 
debtor  or  the  sheriff,  who,  in  that  case,  had  suffered  the  debtor  to  depart  from 
prison. 

In  England,  it  has  been  held  not  sufficient  to  describe  a  magistrate  as  justice 
in  the  county,  nor  as  justice  for  the  county.  He  must  be  described  as  doing  the 
act  as  "justice  in  and  f(u-  the  county"  (Reg.  v.  Totness,  11  Q.  B.  90;  Reg.  v. 
Crowan,  14  lb.  221;  Reg.  v.  Stockton,  7  Q.  B.  520). 


§  3(52.  EESrONSIBlLlTY    OF    MAGISTRATES.  323 

has  been  arrested  and  is  being  taken  before  a  magistrate  for 
examination,  it  is  not  competent  for  the  magistrate  who  meets 
them  in  the  street  to  direct  the  officer  to  take  the  man  back 
to  jail.  It  is  a  magistrate's  duty,  on  all  occasions,  either  to 
examine  into  a  charge,  or,  if  there  is  a  reason  why  he  cannot 
"  examine  into  it,  to  direct  the  constable  to  take  the  party  be- 
fore some  other  magistrate.^  Where  a  magistrate  issued  a 
warrant  for  the  arrest  of  a  person  charged  with  riot,  late  Sat- 
urday night,  and  indorsed  thereon  that  the  accused  i)e  com- 
mitted until  the  next  Monday  for  examination,  which  was 
done,  it  was  held  that  both  the  magistrate  and  officer  were 
liable  as  trespassers.'^  And  it  has  been  held  that,  if  a  magis- 
trate issues  a  warrant  of  arrest  in  a  criminal  case,  upon  a 
statement  of  facts  on  information  and  belief,  when  he  has 
certain  information  that  full  knowledge  is  within  his  reach, 
he  and  the  complainant  are  jointly  liable  in  an  action  for 
false  imprisonment.^  * 

§  362.  If  a  court  of  limited  jurisdiction  issues  process 
which  is  illegal,  and  not  merely  erroneous;  or  if  a  court, 
whether  of  limited  jurisdiction  or  not,  undertakes  to  hold 
cognizance  of  a  cause  without  having  gained  jurisdiction  of 
the  person  by  having  him  before  it  in  the  manner  required 


'  Edwards  v.  Ferris,  7  C.  &  P.  542.  '  Pratt  v.  Hill,  IG  Barb.  303. 

'  Comfort  V.  Fulton,  39  Barb.  56. 

*  In  England,  it  has  been  held  that  the  judge  of  an  inferior  court  of  record, 
who  has  made  an  order  simpliclter  for  the  payment  of  a  debt  by  instahricnts.  can- 
not, upon  non-payment,  issue  his  warrant  for  the  imprisonment  of  the  debtor, 
witiiout  giving  him  an  opportunity  of  being  heard  as  to  the  cause  of  such  non- 
payment. Where,  therefore,  in  trespass  by  A.  against  B.  for  false  imprisonment, 
B.  2)leailed  that  J.  S.  recovered  a  judgment  against  A.  in  the  Sheriff's  Court, 
London ;  that  A.  was  summoned  and  appeared  before  the  judge  of  that  court, 
who  ordered  the  sum  recovered  to  be  jiaid  by  instalments;  that  the  first  instal- 
ment w!is  demanded  and  not  paid;  that  the  judge  duly,  l)y  warrant  under  his 
hand  and  seal,  according  to  8  &  9  Vict.  ch.  127,  ordered  the  officer  of  the  court 
to  take  A.  and  convey  him  to  prison  for  forty  days;  and  that  B.,  as  tiie  attorney 
of  J.  S.,  delivered  the  warrant  to  the  officer,  who  took  A.  Replication  that  by 
this  order  it  was  not  directed  that  A.  should  be  committed  modo  et  forma.  It 
was  held  that  the  warrant  issued  did  not  support  the  plea,  which  must  be  taken 
to  aver  the  existence  of  a  legal  warrant;  and  that  the  defendant,  having  ac- 
knowledged actual  participation  in  the  act  of  trespass  by  pleading  in  confession 
and  avoidance,  could  not  protect  himself  upon  this  issue  by  showing  that  he  had 
acted  merely  as  the  attorney  of  J.  S.  (Kinniug  v.  Buchanan,  8  C.  B.  271 ;  7  D. 
&  L.  169). 


324  FALSE   IMPRISONMENT.  §  363. 

by  law,  the  proceedings  are  void  ;  and  in  the  case  of  a  limited 
and  special  jurisdiction  the  magistrate  attempting  to  enforce 
a  proceeding  founded  on  any  judgment,  sentence,  or  convic- 
tion, in  such  a  case  becomes  a  trespasser.  ^  Where  a  justice 
of  the  peace  rendered  judgment  in  an  action  on  a  note,  after 
the  expiration  of  the  time  when  by  law  he  was  authorized 
to  render  such  judgment,  without  giving  the  defendant  any 
notice,  and  caused  the  defendant  to  be  arrested  and  com- 
mitted to  jail,  it  was  held,  in  an  action  for  false  imprisonment 
brought  by  him  against  the  justice,  that  the  latter  was  liable. 
After  the  suit  had  become  discontinued  by  the  omission  of 
the  justice  to  attend  to  it  within  the  time  allowed  him  by 
la^v,  his  power  over  the  suit  was  at  an  end ;  and  any  proceed- 
ings by  him  afterward  were  coram  non  judice.  He  stood  in 
the  same  situation  as  regarded  the  plaintiff  as  if  no  sucb  suit 
had  ever  been  commenced.  When  a  person  is  required  to 
answer  before  a  justice,  he  ought  to  know  at  what  time  lie 
must  attend,  and  how  long  he  must  remain  in  order  to  dis- 
charge the  duty  imposed  upon  him  by  law\  To  suffer  a  mag- 
istrate to  render  judgment  at  any  time  afterward,  at  his  pleas- 
ure, would  open  the  door  to  a  most  mischievous  abuse  of 
judicial  power.  ^"^^ 

§  363.  Magistrates  may  render  themselves  liable  ^as  tres- 
passers in  consequence  of  wTong  ministerial  acts,  although 
invested  with  authority  to  hear  and  determine  the  facts  nec- 
necessary  to  empower  them  to  do  the  ministerial  act,  and 
although  they  have  passed  upon  such  facts  before  performing 


^  Bigelow  V.  Stearns,  19  Johns.  39;  ante,  §  56. 

=  Dyer  v.  Smith,  13  Conn.  384. 

*  Where  a  justice  of  the  peace,  wlio  owned  a  promissory  note,  instituted  a 
suit  on  the  note  returnal^le  before  himself,  for  the  purjiose  of  collecting  his  own 
debt,  rendered  judgment  and  caused  the  maker  to  be  arrested  and  committed  to 
jail,  it  was  held  tliat  he  was  liable  for  false  imprisonment  (Dyer  y.  Smith,  13 
Conn.  384).  Waite,  J.  : — "It  would  be  a  reproach  to  the  law  to  allow  a  man  to 
be  a  judge  in  his  own  case.  It  is  said  to  be  one  of  the  great  ends  of  the  institu- 
tion of  civil  society  to  prevent  men  from  being  judges  in  cases  wherein  they  are 
concerned,  and  to  remit  the  decision  of  adverse  interests  to  those  who  can  have 
no  interest  whatever  in  the  determination  of  any  such  cases "  (citing  The  Two 
Friends,  1  Rob.  Mm.  R.  237 ;  Mayor  of  Hereford's  Case,  1  Salk.  396). 


§  363.  RESPONSIBILITY    OF   MAGISTRATES.  325 

the  ministerial  act.  ^  *  It  was  early  determined  in  Massachu- 
setts that  the  issuing  of  an  execution  by  a  justice  of  the  peace 
was  a  mere  ministerial  act,  and  in  a  particular  instance  where 
•such  process  was  issued  erroneously,  the  magisti^ate  was  held 
responsiljle  in  damages  for  the  commitment  to  prison  of  a 
party  under  it.  ^  And  where  a  person  who  had  been  con- 
victed by  a  justice  of  the  peace  of  an  assault  and  battery, 
after  being  permitted  to  go  at  large  for  nearly  a  year,  was 
arrested  upon  a  mittimus  without  a  capias  to  show  cause 
why  he  should  not  be  committed,  it  was  held  that  the  justice 
was  lialjle  in  trespass.  ^  In  Michigan,  ujDon  a  conviction  be- 
fore a  justice  of  the  peace,  the  party  was  sentenced  to  pay  a 
fine,  with  imprisonment  for  ten  days  in  default  of  payment. 
The  fine  not  having  been  paid,  the  justice  issued  his  warrant 
of  commitment,  reciting  therein  judgment  for  the  fine,  and 
that  in  default  of  payment,  the  defendant  be  imprisoned  until 
the  fine  was  paid,  or  until  discharged  by  due  course  of  law. 
It  was  held  tjiat  as  the  warrant  was  not  supported  by  the 
judgment,  it  was  void,  and  the  justice  liable.  *f 

'  Pedley  v.  Davis,  30  L.  J.  C.  P.  374 ;  Newbould  v.  Coltman,  6  Esch.  189 ;  20 
L.  J.  M.  C.  149. 

^  Briggs  V.  Wardwell,  10  Mass.  356;  Sullivan  v.  Jones,  2  Gray,  570. 

=  Doggett  V.  Cook,  11  Cusb.  262.  '  La  Roe  v.  Eoeser,  8  Mich.  537. 

*  A  justice  of  the  peace  is  liable  to  an  action  for  false  imprisonment  for  issu- 
ing a  warrant  by  virtue  of  wliicli  the  putative  father  of  a  bastard  child  is  arrested 
upon  the  application  of  an  attorney  who  was  not  authorized  by  the  overseers  of 
the  poor  to  make  the  application  (Wallsworth  v.  McCuUough,  10  Johns.  93, 
cited  and  approved  in  Sprague  v.  Eccleston,  1  Lansing,  74). 

Although  the  facts  set  forth  in  an  affidavit  to  obtain  an  order  of  arrest  be 
slight  and  inconclusive,  yet  if  they  have  some  tendency  to  establish  the  charge, 
and  the  justice,  after  inspecting  them  issues  the  order,  he  will  not  be  liable  to  an 
action  for  false  imprisonment  therefor,  if  the  other  proceedings  are  regular  (Gil- 
lett  V.  Thiebold,  9  Kansas,  427J. 

f  A  justice  of  the  peace  through  personal  ill-will,  got  a  constal>le  to  serve  a 
warrant  for  felony  nine  months  after  the  warrant  was  issued,  the  party  who 
caused  the  warrant  to  be  is-sued  not  having  made  a  second  ajjplicatiou  to  have  it 
executed;  and  the  constable,  also  instigated  by  ill-will,  arrested  the  party  against 
whom  the  warrant  had  issued.  It  was  held  that  an  action  for  false  imprisonment 
would  lie  both  against  the  justice  and  constable  (Garvin  v.  Blocker,  2  Brevard, 
157). 

A  warrant  issued  by  a  militia  oiTicer  under  the  provisions  of  a  statute  impos- 
ing fines  for  the  neglect  of  military  duty,  is  a  ministerial  act,  and  the  officer  is 
liable  as  a  trespasser  for  mistake  as  to  the  law  or  the  issuing  of  erroneous  process 
(Batchelder  v.  Whitcher,  9  New  llamp.  239). 

Justices  are  empowered  by  the  27th  section  of  9  Geo.  4,  ch.  31,  to  convict 
of  an  assault  upon  complaint,  and  the  "oiTender  upon  conviction  thereof,  before 


326  FALSE    IMPRISONMENT.  §§  3G4,  365. 

§  3G4.  When  a  magistrate  commits  a  j^er.sou  to  prison,  in 
a  case  in  wliicli  lie  has  no  jurisdiction,  be  is  liable  for  all  the 
consequences,  which  usually  follow  from  the  execution  of  a 
warrant  of  commitment — such  as  the  party  being  hand-* 
cutfed,  having  his  hair  cut  short  at  the  prison,  and  his  being 
put  in  a  bath  there;  but  not  for  any  violence  or  excess  of 
the  oificers.^  ^'  If,  however,  one  be  committed  to  jail  on  a 
sufficient  process,  that  is  a  defense  to  an  action  for  false  im- 
prisonment, though  he  at  the  same  time  be  committed  on  an 
irregular  or  void  process — unless  it  appear  by  the  pleading 
and  evidence  that  some  injury  or  inconvenience  has  been 
caused  the  plaintiff  by  the  void  process.^ 

14.    Waiver  of  right  of  action. 

§  365.  A  party  may  lose  his  right  to  maintain  an  action 
for  the  false  imprisonment,  by  being  held  to  have  waived 
the  same.  In  an  action  for  taking  the  j^laintiff  on  an  execu- 
tion erroneously  issued,  it  appeared  that  the  plaintiff,  instead 
of  being  discharged  from  the  execution  by  the  defendant,  ob- 
tained, after  a  confinement  of  three  months,  his  liberation 
under  the  act  for  the  relief  of  debtors ;  and  it  was  held   tliat 


them,  is  to  pay  such  sum,  not  exceeding  £-■),  as  slmll  appear  to  them  to  be  meet, 
which  sum  is  to  be  ])aid  to  some  one  of  the  overseers  of  the  poor,  or  to  some 
otlier  officer  of  the  poor  of  the  parish  in  wliich  the  offense  shall  have  been  com- 
mitted, to  be  by  such  overseer  or  officer  paid  over  to  the  general  use  of  the  rate 
ol  the  county  in  wliich  such  parisli.  &c.,  shall  be  situate.  A  conviction  under 
this  section  ordered  the  party  convicted  to  pay  the  fine  to  the  treasurer  of  the 
county.  It  was  held  that  the  conviction  was  bad,  and  the  magistrates  lial)le  to 
an  action  of  trespass  at  the  suit  of  the  party  imprisoned  under  it  (Chaddock  v. 
Wilbraham,  3  New  Sess.  Cas.  337;  13  Jur.  18U;  17  L.  J.  79). 

'  Mason  v.  Barker,  1  Car.  &  K.  100.  "  Lewis  v.  Avery,  8  Vt.  287. 

*  Where  a  person,  empowered  to  take  testimony,  commits,  without  authority, 
a  witness  for  refusing  to  testify,  not  only  he,  but  all  who  are  present  assisting 
and  urging  the  imprisonment,  are  trespassers  (Marsh  v.  Williams,  1  How.  Miss. 
133). 

Where  a  magistrate,  who  has  jurisdiction  of  the  person,  issues  a  warrant  of 
commitment  upon  tiie  complaint  of  another,  for  an  offense  over  which  he  has 
no  jurisdiction,  lie  will  not  l)e  liable  for  false  imprisonment  unless  his  want  of 
jurisdiction  is  shown  on  the  face  of  tlie  proceedings  (Miller  v.  Grice,  1  Richard- 
eon,  147). 

On  mesne  process,  by  attachment  for  debt,  issued  under  the  lavv  and  authority 
of  the  United  States,  returnable  to  a  court  of  the  United  States,  to  be  served  on 
a  citizen  of  the  State  within  tlie  same,  a  mittimus  is  necessary  to  authorize  a 
ccmmitment  (Palmer  v.  Allen,  5  Day,  1S3,  Baldwin,  J.,  dissenting). 


§  3GG.  WAIVER    OF   EIGHT  OF   ACTIOIT.  327 

he  liad  thereby  waived  the  error  and  affirmed  the  execution.* 
So,  where  the  defendants,  having  "been  arrested  under  a 
judge's  order,  offered  bail  to  the  phiintiff's  attorneys,  and  in- 
duced them  to  examine  the  bail ;  and  the  plaintiff's  attorneys, 
at  the  solicitation  of  the  defendants'  attorney,  wrote  their 
approval  on  the  undertaking,  and  the  defendants  were  dis- 
charged from  custody;  it  was  held  that  the  defendants  had 
waived  any  objection  to  having  been  held  to  baiP  In  Mas- 
sachusetts, it  has  been  held  that,  if  a  person,  served  with 
original  process,  by  the  wrong  christian  name,  allows  judg- 
ment to  be  taken  against  him  by  default,  he  cannot  maintain 
an  action  against  the  officer,  for  his  arrest  on  execution  by 
the  same  uame.^ 

§  366.  An  agreement  not  to  bring  an  action,  if  founded 
on  a  good  consideration,  would  be  binding.  Accordingly 
where  after  an  arrest,  a  party  applied  to  a  judge  at  chambers, 
to  be  discharged  out  of  custody  ;  and  it  being  represented 
that  by  his  continuing  in  prison,  he  would  commit  an  act  of 
bankruptcy,  the  judge,  on  the  4th  of  December,  ordered  the 
defendant  to  be  discharged  out  of  custody  as  to  the  action, 
upon  giving  a  fresh  warrant  of  attorney  with  a  defeasance 
for  the  payment  of  part  on  the  4th  of  January,  and  the  re- 
mainder with  interest  on  the  4th  of  August,  with  liberty  to 
issue  execution  for  the  first  sum,  if  not  duly  paid,  and  after- 
ward for  the  latter  sum  if  default  made  in  the  payment ; 
and  upon  giving  such  warrant  of  attorney,  the  judgment  to 
be  set  aside,  and  a  mortgage  to  remain  as  security,  the  de- 
fendant undertaking  not  to  bring  any  action  for  the  imprison- 
ment ;  and  the  prisoner  did  not  avail  himself  of  the  order; 
it  was  held  tliat  this  order  embodied  an  absolute  agreement 
of  the  parties,  founded  upon  good  consideration,  that  he 
should  be  forthwith  discharged  out  of  custody,  and  that  he 
should  bring  no  action  for  false  imprisonment,  and,  therefore, 
that  such  an  action  could  not  be  maintained."* 


•  Reynolds  v.  Church,  3  Caines,  274.  '  Dale  v.  Eadcliffe,  25  Barb.  333. 

=  Tiull  V.  Ilowluml,  10  Cush.  109.         "  Wcutworth  v.  BuUen,  9  B.  &  C.  840. 


328  FALSE   IMPRISONMENT.  §  367. 

15.  Nature  of  the  action. 

§  367.  An  action  for  false  imprisonment,  is  an  action  for 
a  direct  wrong  or  illegal  act  in  which  the  defendant  mu^t 
have  personally  participated.  It  is  for  having  done  that 
which,  upon  the  statement  of  it,  is  manifestly  illegal ;  while 
the  ground  of  the  action  for  a  malicious  arrest  or  prosecution, 
is  the  procuring  to  be  done  what  upon  its  face  is,  or  may  be, 
a  legal  act  from  malicious  motives,  and  without  probable 
cause.  This  distinction  is  clearly  stated  in  the  reasons  for 
the  judgment  in  Johnston  v.  Sutton,^  as  given  by  Lord 
Loughborough  and  Lord  Mansfield."^  The  gist  of  the  action 
is  the  unlawful  detention.  Malice  in  the  defendant  will  be 
inferred  so  far  at  least  as  to  sustain  the  action ;  and  the  only 
bearing  of  evidence  to  show  or  disprove  actual  malice,  is 
upon  the  question  of  damages.  So  also,  probable  cause  or 
reasonable  ground  of  suspicion  against  the  party  arrested, 


*  1  Term  R.  544 ;  and  see  Stantou  v.  Seymour,  5  McLean.  267. 

*  Trespass  is  the  proper  remedy  for  false  imprisonment.  But  if  the  arrest  be 
made  on  void  process,  such  a  process  issuing  out  of  a  court  without  jurisdiction, 
■where  malice  and  falsehood  are  the  gravamen  of  the  offense,  and  the  false  im- 
prisonment only  an  incident,  trespass  on  the  case  may  be  maintained  (Piatt  v. 
Niles,  1  Edmonds  N.  Y.  Sel.  Cas.  230). 

An  action  will  lie  against  one  who  has  either  unlawfully  arrested  or  im- 
prisoned another,  or  who  has  falsely,  that  is,  unjustly  and  maliciously,  prose- 
cuted him  and  caused  his  arrest.  But  these  are  different  actions  requiring  dif- 
ferent pleadings  and  evidence,  and  governed  by  different  rules.  The  action  for 
unlawfully  ari'esting  or  imprisouiug  another,  is  trespass ;  while  for  maliciously 
prosecuting  another,  or  causing  or  procuring  his  arrest,  the  remedy  is  by  action 
on  the  case.  The  former  is  the  action  for  false  imprisonment ;  the  latter  for  a 
malicious  prosecution  or  malicious  arrest.  In  the  last  two  cases,  the  action  is 
substantially  the  same,  and  is  governed  by  the  same  rules,  whether  the  injury 
complained  of  is  a  prosecution  or  an  arrest.  The  arrest  may  be  the  only  act  of 
prosecution.  Or  there  may  be  an  unlawful  and  malicious  arrest  in  the  course  of 
•a  lawful  prosecution;  as  where  a  creditor  arrests  his  debtor  for  a  demand  upon 
which  he  cannot  be  imprisoned,  or  for  more  than  is  due,  or  where  he  is  exempt 
from  imprisonment  (Brown  v.  Chadsey,  89  Barb.  253,  per  Emott,  J.). 

Mr.  Chitty  (Tr.  on  Plead,  p.  187,  188)  says,  '"that  whenever  an  injury  to  a 
person  is  effected  by  the  regular  process  of  a  court  of  competent  jurisdiction, 
though  maliciously  adoj^ted,  case  is  the  proper  remedy,  and  trespass  cannot  be 
maintained ;  as  for  example,  for  a  malicious  arrest  or  a  malicious  prosecution. 
That  no  person,  who  acts  upon  a  regular  writ  or  warrant,  can  be  liable  to  the  ac- 
tion of  trespass,  however  malicious  his  conduct,  but  that  case  for  the  malicious 
motive  and  proceeding  is  the  only  form  of  action  (Quoted  and  approved  by 
Hosmer,  Ch.  J.,  in  Watson  v.  Watson,  9  Conn.  140,  who  also  cited  the  follow- 
ing:—Belk  v.  Broadbcnt,  3  Term  R.  183;  Booth  v.  Cooper,  1  lb.  535;  s.  c.  3 
Esp.  135;  Ratcllffe  v.  Burton,  3  Bos.  &  Pull.  223:  Stonehousev.  Elliott,  6  Term 
R.  315;  Luddingtou  v.  Peck,  2  Conn.  700;  3  Stark.  Ev.  1446). 


§^  308,  309.  DECLARATION.  329 

afford  no  justification  of  an  arrest  or  imprisonment,  which  is 
without  authority  of  hiw.^  As  the  continuation  of  an  un- 
lawful imprisonment  constitutes  a  new  trespass,  a  recovery 
in  an  action  brought  during  the  imprisonment,  will  not  bar 
another  action  after  it  has  terminated.^ 

16.  Declaration. 

§  368.  Where  a  person  has  been  arrested  in  order  to  en- 
force the  2^ayment  of  a  tax,  the  assessment  of  which  was 
wholly  wrongful,  he  generally  has  an  election  to  treat  the 
arrest  as  the  immediate  cause  of  the  injury,  and  declare  in 
trespass ;  or  to  treat  the  assessment,  upon  wdiich  the  ^varrant 
and  arrest  were  founded,  as  the  cause  of  action.  Such  are 
cases  where  the  party  was  not  liable  to  the  assessment  of  any 
tax,  or  where  the  party  making  the  assessment  had  no  au- 
thority to  assess  a  tax.  But  if  the  authority  exists  to  assess 
taxes,  and  the  party  ^vas  liable  to  some  tax,  then  trespass 
_^may  not  be  a  proper  remedy.'^  ''^ 

§  369.  The  declaration  need  not  allege  that  the  imprison- 
ment was  malicious  and  wuthout  probable  cause,  though 
malice  may  be  given  in  evidence  to  affect  the  amount  of  dam- 
ao-es.*  A  declaration  which  states  that  the  defendants  as- 
saulted  the  plaintiff,  and  by  force  compelled  him  to  go  to  a 
ceptain  place,  where  they  imprisoned  and  detained  him  sev- 
eral hours  as  a  prisoner,  is  sufficient,  without  alleging  that 
the  acts  of  the  defendants  were  done  illegally  or  wrongfully, 
or  without  competent  authority.'^     When  there  is  a  claim  of 


'  Brown  v.  Chadsey,  39  Barb.  253;  Burns  v.  Erben,  40  N.  Y.  463. 

=  Leltuul  V.  Marsh,  10  Mass.  389. 

=  Little  V.  Merrill,  10  Pick.  543;  Little  v.  Greenleaf,  7  IMass.  23!i;  The  State 
V.  Thompson,  2  N.  Hamj).  236;  Pease  v.  Whitney,  5  Mass.  380,  384;  Perry  v. 
Buss,  15  N.  H.  222. 

"  Colter  V.  Lower,  35  Ind.  285.  And  see  Tavlor  v.  Owen,  2  Blackf.  303; 
Hull  V.  Rogers,   lb.  429 ;  Wasson  v.  Canlleld,   6  lb.  40G ;  Poulk  v.  Slocuui,  3  lb. 

4:i. 

'  Gallimore  v.  Ammcrnian,  39  lud.  323. 

"-^  In  Alabama,  counts  in  the  forms  furnished  by  the  Code  (p.  554)  for  assault 
and  batterv  and  for  false  imprisonment  are  both  in  trespass  (Yv'illianis  v.  Ivcy,  37 
Ala.  242,  244). 


330  FALSE     IMPRISONMENT.  §  370. 

special  damage,  it  must  be  averred,  in  order  that  the  defend- 
ant may  have  an  opportunity  to  controvert  it.^  The  follow- 
ing declaration  was  held  good :  That  the  defendant  fakely 
and  maliciously  made  an  affidavit  in  writing,  <fec.,  and  upon 
said  affidavit  falsely  and  maliciously  caused  and  procured 
said  plaintiff  to  be  imprisoned  by  his  body,  and  to  be  impris- 
oned, and  to  be  kept  and  detained  in  prison  for  a  long  time, 
to  wit,  for  the  space  of  ten  days  then  next  following,  at  the 
expiration  of  which  said  time  the  said  plaintiff,  in  order  to 
procure  his  release  and  discharge  from  said  imprisonment, 
was  forced  and  obliged  to,  and  did  then  and  there  pay  to  said 
defendant  a  large  sum  of  money,  to  wit,  &c.,  and  was  there- 
upon discharged  and  released  from  said  arrest  and  imprison- 
ment.^ * 

17.  Plea  justifying  arrest  without  ivarrant. 

§  370.  A  plea  justifying  an  arrest  without  v>' arrant,  on 
the  ground  of  reasonable  and  probable  suspicion,  must  allege 


'  Rising  V.  Granger,  1  Mass.  47;  Westwood  v.  Cowne,  1  Stark.  172;  Stanton 
V.  Seymour,  o  McLean,  267. 

^  Sheppard  v.  Furniss,  19  Ala.  700. 

*  A.  caused  B.  to  be  taken  into  custody,  on  suspicion  of  felony,  and  taken 
before  a  magistrate,  who  remanded  B.  for  two  days,  and  then  discharged  him. 
SeiiMe.  that  B.,  on  a  declaration  for  a  false  imprisonment  (in  the  usual  form), 
cannot  recover  for  the  two  days'  imi)risonmeut  after  the  remand  (Holtum  v.  Lo- 
tun,  6  Car.  &  P.  726.)  Whether  he  could  do  so,  if  it  were  stated  as  special  dam- 
age, quoeie  (lb.). 

In  trespass  for  the  abduction  of  the  plaintiffs  daughter,  under  twenty-one 
years  of  age,  the  declaration  need  not  allege  that  the  plaintifi'  thereby  lost  tiie 
services  of  his  'child,  although  there  be  no  evidence  of  a  forcible  taking  (Kirk- 
patrick  v.  Lockhart.  2  Brevard,  276). 

Bennus  v.  Guyldley  (Cro.  Jac.  505.  506)  was  an  action  on  the  case.  The 
declaration  stated  that  the  defendant  recovered  a  judgment  against  the  plaintiff, 
part  of  which  was  afterwards  paid,  and  the  residue  released;  and  the  defendant 
covenanted  that  he  would  withdraw  all  process  of  execution  for  the  same.  The 
declaration  further  stated  that  tlie  defendant,  intending  to  vex  him,  served  a  ca. 
sa..  returnable  '.i  Trin.  following,  which  he  delivered  to  the  sheritf  to  execute, 
who,  by  force  thereof,  afterwards,  to  wit,  on  the  20tli  day  of  July,  arrested  and 
detained  him,  until  he  paid  the  amount  of  the  judgment.  The  defendant  pleaded 
that  the  sheriff  did  not  arrest  by  his  ai)pointment ;  to  which  plea  the  ])lainTitl'  de- 
murred. At  the  argmiient.  the  defendant  did  not  maintain  the  plea,  but  took 
several  exceptions  to  the  declaration,  one  of  which  was,  that  it  was  shown  that 
the  sheriff  made  the  arrest  on  the  2()th  of  July,  which  was  long  after  the  return 
of  the  writ;  so,  it  was  done  without  warrant,  and  was  false  imprisonment  in  the 
sheriff  who  took  him  by  color  of  tiiat  process,  and  for  that  cause  principally  the 
declaration  was  held  to  be  bad  by  all  the  court. 


§  370.      TLEA    JUSTIFYING   ARREST  WITHOUT   WARRANT.  331 

the  commission  of  an  offense  wliicli  justified  the  arrest,  and 
also  state  the  facts  which  gave  rise  to  the  suspicion.^ '"'  To  a 
declaration  in  trespass  for  assaulting  the  plaintiff  and  causing 
him  to  be  taken  into  a  police  station,  and  thence  before  a 
magistrate,  upon  an  unfounded  charge  of  having  unlawfully 
attempted  to  procure  from  the  banking  house  of  the  defend- 
ant a  blank  check  book,  the  defendant  pleaded  that  he  and 
certain  other  persons  carried  on  the  business  of  bankers,  un- 
der the  firm  of  C.  &  Co. ;  that  the  plaintiff  unlawfully  endeav- 
ored to  obtain  from  C.  &  Co.  a  blank  check  book,  ]>y  falsely 
pretending  that  one  T.,  who  kept  ali  account  with  them,  was 
his  master,  and  liad  sent  him  for  it ;  that,  in  pursuance  of 
sucli  unlawful  endeavor,  the  plaintiff  induced  one  A.  to  go 
into  the  banking  house  and  to  ask  for  a  blank  check  book, 
saying  it  was  wanted  for  T.,  and  that  A.  accordingly  did  so, 
and  stated  that  he  had  l)een  so  sent  by  the  plaintiff",  and  that 
the  plaintiff  was  waiting  outside  for  it ;  whereupon  the  de- 
fendant accompanied  A.  to  the  place  where  the  plaintiff  was 
waiting,  and  upon  A.  stating,  in  the  presence  and  hearing  of 
the  plaintiff,  that  he  had  been  so  sent  by  him,  the  defendant, 
having  good  and  probable  cause  of  suspicion,  and  vehemently 
suspecting  that  the  plaintiff  had,  by  such  false  and  fraudulent 
pretences,  as  aforesaid,  unlawfully  endeavored  to  obtain  from 
the  said  C.  tk  Co.  a  blank  check  book  of  the  said  C.  <fe  Co., 
for  unlawful  and  unauthorized  purposes,  committed  the  tres- 
pap.s  complained  of  It  was  held,  that  the  plea  was  ])ad  in 
substance,  inasmuch  as  it  neither  alleged  that  a  felony  had 
been  committed,  which  alone  could  make  it  a  good  justifica- 
tion at  common  law,^  nor  that  the  plaintiff  had  committed  an 
oftense  against  the  statute,^  so  as  to  justify  his  arrest  without 
warrant,^  So,  likewise,  where  the  defendant  pleaded  that  he 
was  an  officer,  that  a  felony  had  been  committed,  that  tliere 


'  Brown  v.  Chadsey,  39  Barb.  253. 

"  Ante,  §  322.  »  7  &  8  Geo.  4,  c.  29. 

*  Mathews  v.  Biddiilph,  4  Scott  N.  R.  54;  1  Dovvl.  N.  S.  216. 

*  A  plea  wliieh  does  not  show  tint  the  arrest  and  imprisonment  of  the  plaintiff, 
which  are  justified,  are  the  same  of  whicii  the  pla-ntiii"  complained,  will  bo  bad 
on  demurrer  (Gallimore  v.  Auimenuau,  39  Ind.  333). 


332  FALSE    IMPRISONMENT.  §  371. 

was  reasonable  suspicion  and  belief  that  the  plaintiff  had 
committed  said  felony,  and  that,  in  order  to  take  the  plaintiff 
before  a  magistrate,  he  had  gently  arrested  him,  the  plea  was 
held  bad,  on  demurrer,  for  not  setting  forth  the  facts  related 
to  him  from  which  he  inferred  that  the  plaintiff  was  guilty.^ 
And  where,  in  an  action  for  false  imprisonment,  the  defend- 
ants  pleaded  that,  before  the  time  when,  <fec.,  certain  j)ersons 
unknown  had  forged  receipts  on  certain  forged  dividend  war- 
rants, and  received  the  money  purporting  to  be  due  in  respect 
thereof  in  bank  notes  of  the  Bank  of  England,  amongst  which 
was  a  note  for  lOOZ.,  which  was  afterward  exchanged  there 
for  other  notes,  and  amongst  them  one  for  10^.,  the  date  and 
number  of  which  were  subsequently  altered ;  that  afterward, 
and  a  little  before  the  time  when,  tfec,  the  plaintiff  was  sus- 
piciously possessed  of  the  altered  note,  and  did,  in  a  suspicious 
manner,  dispose  of  the  same  to  one  A.  B.,  and  after,  and  before 
the  time  when,  tfec,  in  a  suspicious  manner,  departed  and  left 
England,  and  went  to  Scotland,  and  there  continued;  where- 
upon the  defendants  had  reasonable  cause  to  suspect,  and  did 
suspect,  the  plaintiff  had  forged  the  said  receipts,  whereupon 
the  defendants  gently  laid  their  hands  on  the  plaintiff,  and 
carried  him  to  and  detained  him  in  a  jail  in  Scotland,  in  order 
that  he  might  be  conveyed  by  a  warrant,  to  be  issued  by  a 
justice  of  the  county  of  Middlesex,  to  be  dealt  with  accord- 
ing to  law.  It  was  held,  on  demurrer,  that  this  plea  was  too 
general,  it  being  necessary  to  show  the  causes  of  suspicion 
with  certainty,  in  order  that  the  court  might  judge  of  their 
reasonableness.^  ^" 

§  371.  A  plea  justifying  an  arrest  without  a  warrant,  on 
account  of  an  affray,  or  to  preserve  the  peace,  must  either 
aver  that  there  was  an  affray  or  breach  of  the  peace  at  the 

'  Wasson  v.  Caufield,  G  Blackf.  4C6.  =  Mure  v.  Kaye,  4  Taunt.  34. 

*  Qumre^  whether  a  defendant,  justifying  an  arrest  in  Scotland,  as  made  on 
suspicion  of  a  felony  committed  in  England,  must  show  that  the  law  of  Scotland, 
as  well  as  the  law  of  England,  warranted  such  arrest;  or  whether,  the  defendant 
showing  by  his  plea  an  arrest  made  in  Scotland  which,  if  made  in  England, 
would  be  warranted,  it  does  not  lie  on  the  plaintiff,  suing  in  England,  to  reply 
that  by  the  law  of  Scotland  the  arrest  was  not  warranted  (Mure  v.  Kaye,  suyra). 


§  371.      PLEA   JUSTIFYING    ARREST   WITHOUT  WARRANT.  333 

time  of  tlie  arrest,  or  a  well  founded  apprehension  of  its  re- 
newal.^ Therefore  a  plea  that  the  defendant  was  possessed 
of  a  house,  and  that  the  plaintiff  was  then  making  a  great 
disturbance  therein,  and  refused  to  depart  when  requested, 
and  was  in  great  heat  and  fury,  ready  and  desirous  to  make 
an  affray,  and  cause  a  breach  of  the  peace,  whereupon  the 
defendant  gave  the  plaintiff  into  custody,  is  bad.^  So  like- 
wise, a  plea  which  averred  that  the  plaintiff  committed  a 
breach  of  the  peace  by  violently  knocking  for  a  long  time 
at  the  door  of  the  defendant's  dwelling,  and  that  the  plaint- 
iff threatened  to  continue  such  knocking  until  a  certain  book 
was  delivered  to  him ;  that  the  defendant  then  sent  for  a 
constable,  and  the  plaintiff  having  ascertained  this,  ceased 
knocking  and  ran  off,  when  the  defendant,  with  the  assistance 
of  the  constable,  immediately  pursued  the  plaintiff  and  over- 
took him  near  the  dwelling-house  ;  whereupon  the  defendant, 
in  order  to  preserve  the  peace,  and  prevent  the  plaintiff  from 
continuing  the  disturbance,  gave  him  in  charge  of  the  con- 
stable, was  held  insufficient,  for  the  reason  that  it  did  not 
show,  either  that  the  breach  of  the  peace  was  continuing,  or 
allege  any  facts  going  to  prove  that  a  renewal  of  the  dis- 
turbance was  to  be  apprehended.^  So  also,  where  the  de- 
fendant pleaded  that  the  plaintiff*,  with  force  and  arms,  came 
to  the  door  of  the  defendant's  house,  and  with  violence,  at- 
tempted to  enter  against  the  will  of  the  defendant,  and  wil- 
fully and  wantonly  rang  the  door  bell,  without  lawful  oc- 
casion, and  made  a  great  noise  and  disturbance,  to  the  an- 
noyance of  the  defendant,  and  against  the  peace  of  the 
Queen,  and  (after  request  to  cease)  continued  making  such 
noise,  &>c.,  without  any  lawfal  excuse ;  and  thereupon  the 
defendant,  in  order  to  preserve  the  peace,  and  render  good 
order  and  tranquility  in  his  house,  gave  the  plaintiff'  in 
charge  to  a  policeman  ;  the  plea  was  held  bad  as  not  show- 
ing that,  at  the  time  the  plaintiff  was  given  in  charge,  he  was 

'  See  ante,  §  321.  "^  Wheeler  v.  Whiting,  9  Cur.  &  P.  263. 

'  BsLwnea  v.  Brewster,  1  Gale  &  D.  669 ;  6  Jur.  392. 


334  FALSE   IMPRISONMENT.  §  372. 

committing  a  breacli  of  tlie  peace,  or  that  there  was  reason- 
aHe  ground  for  apprehending  that  a  breach  of  the  peace 
would  be  committed.^* 

18.  Plea  justifying  arrest  under  process. 

§  372.  AVhen  the  arrest  is  sought  to  be  justified  under 
lawful  process,  the  defense  must  be  specially  pleaded.  Y/here 
therefore,  the  plaintiff,  in  the  first  count  of  his  declaration, 
alleged  a  forcible  arrest  and  imprisonment  by  the  defendant 
in  Canada,  to  which  the  defendant  pleaded  the  general  is- 


■  Grant  v.  Moser,  5  Man.  &  G.  123;  G  Scott  N.  E.  46. 

*  In  the  following  cases,  the  plea  was  sustained : — The  defendant  pleaded  that 
the  plaintifi' attempted  forcibly  to  !)reak  and  enter  his  messuage  or  pulilic  house 
witliout  leave  of  the  delendant.  whereupon  he,  the  defendant,  resisted  such  en- 
trance; and  because  the  phuntifl"  behaved  himself  violently,  and  created  a  dis- 
turl)i)nce  in  the  street,  by  which  means  a  mob  was  asseml)led,  and  the  defend- 
ant's liusiness  interrupted,  and  his  customers  annoyed,  and  because  the  plaintiff 
threatened  to  continue  such  violent  conduct,  and  to  renew  his  attempts  and  ef- 
forts to  get  into  the  house,  and  because  no  request  or  entreaty  of  the  defendant 
to  the  plaintitf  to  abstain  from  and  abandon  his  attempts  and  efibrts  was  complied 
with,  the  defendant,  in  order  to  preserve  the  peace,  and  secure  himself  from  a 
renewal  of  such  attempts  and  efl'orts,  gave  him  in  charge  to  a  constable,  to  be 
carried  before  a  justice  of  the  peace.  It  was  held,  after  verdict,  that  the  plea 
was  good  (Ingle  v.  Bell,  1  Mecs.  «&  W.  516).  A  plea  of  justification,  after  stating 
that  the  defendants  were  in  the  lawful  possession  of  a  yard,  and  were  there 
erecting  a  wall  by  their  servants,  averred  that  the  plaintitf  entered  the  y;ird  and 
upon  the  wall,  and  made  a  great  noise,  disturbance  and  aft'ray,  ill  treated  the  de- 
fendants, threw  down  their  servants  so  employed,  and  obstructed  the  erection  of 
the  wall,  in  breach  of  the  peace;  that  the  defendants  requested  the  plaintifi"  to 
depart,  which  he  refused  to  do;  whereupon  the  defendants  and  their  servants 
gently  removed  him,  and  he  violently  resisted  and  assaulted  one  of  the  defend- 
ants, in  so  doing;  that  the  plaintiff  then  and  immediately  afterward,  and  just 
before  the  said  time  when,  etc..  with  force,  &c.,  again  broke  into  and  entered 
the  yard,  and  got  upon  the  wall,  and  again  made  a  great  noise,  disturbance  and 
affray  therein,  and  threatened  to  assault,  insulted  and  ill  treated,  and  showed 
fight  to  the  defendants,  and  then  again  forcibl}  obstructed  the  further  erection 
of  the  said  wall,  and  threw  down  part  thereof  in  breach  of  the  peace;  where- 
upon, the  defendants  having  view  of  the  offenses  and  misconduct  of  the  plaint- 
itf' last  aforesaid,  in  order  to  prevent  such  breach  of  the  peace,  then  and  there 
gave  cl.arge  of  the  plaintifi"  to  a  police  constable,  who  then  saw  the  misconduct 
of  the  plaintitf,  to  take  him  before  a  justice,  which  the  policeman  did.  It  was 
held  that  these  were  sufficiently  positive  averments  of  a  continuing  breach  of 
the  peace  from  the  commencement  until  the  plaintiff  was  given  in  charge,  or 
amounted  to  a  necessary  implication  of  a  well  founded  apprehension  that  it  would 
be  renewed  (Price  v.  Seeley,  10  CI.  &  Fin.  28). 

The  declaration  charged  an  assault  and  battery  of  the  plaintiff,  and  taking 
him  into  custody  along  certain  streets,  and  imprisoning  him  on  a  false  charge  of 
an  assault  with  intent  to  con)mit  a  felony.  Plea  that  the  plaintiff  having  as- 
saulted the  defendant,  the  latter  gave  the  former  in  charge  to  a  peace  officer  who 
took  him  before  a  magistrate.  Held  that  the  plea  was  not  a  sufficient  answer 
(Stammers  v.  Yearsley,  3  M.  &  Scott,  410;  10  Bing.  35). 


§  373.  PLEA   JUSTIFYING   ARREST   UNDER   PROCESS.  335 

sue,  and  the  plaintiflF  proved  without  objection,  that  the 
defendant  procured  a  warrant  from  a  magistrate  wlio  issued 
it  at  his  request,  and  that  on  this,  the  plaintiff  was  im- 
prisoned ;  it  was  held  that,  as  no  justification  under  the  proc- 
ess was  pleaded,  none  could  be  insisted  upon  ;  but  that,  as 
the  causing  the  plaintiff  to  be  arrested,  was  a  substantiv^e 
act,  the  proof  of  which  established  all  that  the  plaintiff  had 
alleged  in  his  declaration,  he  was  entitled  to  a  verdict.^  * 

§  373.  When  the  defendant  pleads  a  justification  of  the 
imprisonment  under  an  order  of  the  court,  and  undertakes 
to  set  out  in  his  plea  the  facts,  the  plea  must  state  all  the 
facts  necessary  to  give  the  court  jurisdiction.^ f  To  an  ac- 
tion for  false  imprisonment,  the  defendant  justified  under  an 
order  of  the  court  of  review,  that  "  the  plaintiff  should  stand 
committed  for  contemj^t  of  that  court,  in  writing,  printing, 
and  publishing,  a  certain  printed  paper,"  therein  referred  to. 
The  plea  then  stated  that  "  the  said  order  having  been  so 
made  as  aforesaid,  the  Hon.  Sir  George  Rose,  one  of  the  judges 
of  the  said  court  of  leview,  afterward,  to  wit,  &g.,  at  the 
request  of  the  defendants,  and  according  to  the  course  and 
practice  of  the  said  court  of  review,  made  and  issued  out  of 
the  same  court,  his  warrant  in  writing  reciting  the  order, 
and  directed,"  <fec.,  for  the  arrest  of  the  plaintiff.  It  was 
held  first,  that  the  plea  was  ill  for  not  showing  distinctly 
that  Sir  George  Rose  was  one  of  the  judges  of  the  court  of 
review  at  the  time  of  issuing  the  warrant ;  secondly,  that 
it  did  not  appear  that  a  single  judge  of  the  court  had  any 

'  Allen  V.  Parkhurst,  10  Vt.  557.  '  Kettler  v.  Johnson,  57  111.  109. 

*  Bebee  v.  Steel,  2  Vt.  314,  was  an  action  for  false  imprisonment,  to  which 
the  defendant  pleaded  the  general  issue  and  a  special  justiiicatinn.  An  excep- 
tion was  taken  to  the  refusal  of  tlie  court  below  to  allow  the  defendant  to  with- 
draw the  general  issue,  after  the  jury  were  impaneled,  and  before  any  testimony 
was  given  them.  It  was  held  a  matter  of  discretion  with  the  court  to  allow  it, 
or  not.  under  the  circumstances.  "If  asked  for,  before  the  jury  were  impaneled, 
it  would  generally  be  granted  of  course;  if  afterwards,  it  might  be  deemed  in- 
.  expedient;  as  it  would  vary  the  course  of  presenting  the  testimony  calculated  by 
the  plalntiil.  At  any  rate,  the  allowance  or  disallowance  of  such  a  motion,  can- 
not be  assigned  for  error"  (lb.  per  Hutchinson,  J.). 

t  When  the  imprisonment  is  sought  to  be  justified  under  a  judicial  writ,  the 
writ  must  be  set  out  in  the  plea  in  full,  or  be  sutHcicntly  described  (Kettler  v. 
Johnson,  supra). 


33G  FALSE    IMPRIS0NME2fT.  §  374. 

power  or  authority  by  his  individual  warrant  to  cause  the 
plaintiff  to  be  arrested  for  the  contempt  stated  in  the  plea : 
and  lastly,  that  these  defects  were  not  aided  by  the  allega- 
tions with  respect  to  the  practice  of  the  court,  even  if  those 
generally  amounted  to  any  averment  as  to  the  jDractice  of 
that  court.^  ''* 

§  374.  Where  an  action  is  brought  against  an  oflScer, 
for  an  unauthorized  and  illegal  arrest,  and  the  defendant 
justifies  under  legal  process,  he  must  set  forth  a  due  return 
of  it.^  The  form  of  the  plea  of  justification,  as  given  by 
Mr.  Chitty,^  is  that,  at  the  time  and  place  of  return,  the 
defendant  returned  said  writ,  and  then  and  there  returned 
thereon,  that  by  virtue  thereof  he  had  arrested  the  said  A. 
B.,  the  plaintiff,  whose  body  he  had  ready,  &c. ;  it  being  of 
course  alleged  in  the  j^lea  that  this  is  the  same  supposed 
trespass  upon  which  the  plaintiff  has  counted.  If  tlie 
plaintiff  would  rely  upon  another  arrest,  or  upon  an  abuse 
of  his  authority,  by  the  officer  in  making  the  arrest  which 


'  Van  Sandau  v.  Turner,  14  L.  J.  N.  S.  154;  9  Jur.  296. 

=  Ante,  §  353;  Davis  v.  Bush,  4  Blackf.  330.  =  3  Chit.  PI.  501. 

*  Where,  in  trespass  by  A.  B.,  the  defendant  justified  under  a  m.  sn.  alleged 
to  liave  been  issued  against  "the  now  plaintiff, "  without  otherwise  describing 
him;  it  was  held  that  the  justification  was  established  by  tlie  prnductiou  of  a 
ca.  sa.  against  C.  B.,  and  proof  that  in  the  former  action,  the  now  plaintiff  was  the 
party  sued  by  the  name  of  C.  B.  It  was  further  held  that  the  plea  would  have 
been  more  formal  if  it  had  alleged  that  the  ca.  sa.  was  against  C.  B.,  and  that  the 
party  against  whom  the  m.  S".  was  issued  and  the  now  plaintiflf,  were  one  and  the 
same  person;  and  that  although  it  had  been  alleged  that  the  ca.  sa.  was  against  C. 
B.  the  averment  of  identity  would  have  been  sufficient  without  averring  that  the 
plaintifl"  was  known  as  well  by  one  name  as  by  the  other  (Fisher  v.  Magnav,  5 
Man.  &  G.  778). 

A  defendant,  in  an  action  for  false  imprisonment,  pleading  a  justification 
under  mesne  process  sued  out  by  him  in  a  cause  in  which  he  was  plaintiff,  may 
state  that  the  writ  issued  upon  an  affidavit  to  hold  to  bail  without  settiug  forth 
the  cause  of  action  (Belk  v.  Broadbent,  3  T.  R.  183). 

V/here  several  join  in  the  same  special  justification  of  trespass  and  imprison- 
ment they  must  show  a  justification  for  all.  ' '  Conceding  that  the  facts  set  forth  in 
the  pleas  furnish  a  good  answer  for  the  constable  who  committed  the  plaintifl' 
upon  the  extent,  they  are  no  defense  to  the  others;  for  the  pleas  do  not  attempt 
to  connect  them  with  the  justification  at  all  by  stating  that  they  acted  under  the 
constable  as  aids  or  assistants,  or  that  they  were  sefectmen  or  other  officers  of 
the  town,  and  put  the  extent  into  the  hands  of  the  constable,  for  execution.  As 
they  do  not  show  themselves  in  any  way  connected  with  the  justification,  and 
have,  by  joining  in  the  plea,  admitted  their  connection  with  the  trespass  on  the 
plaintifl'.  the  pleas  are  bad  as  to  them,  and  this  renders  the  pleas  insufiicient  to 
justify  the  officer  also"  (Clark  v.  Lathrop,  33  Vt.  140,  per  Poland,  J.). 


§§  375,  376.  REPLICATIONS  TO  PLEAS.  337 

is  justified,  or  in  his  subsequent  proceedings,  such  as  to 
render  him  liable  as  a  trespasser  ah  initio  at  common  law, 
this  must  be  set  forth,  by  a  new  assignment,  or  by  a  replica- 
tion alleging  the  excess  of  authority.* 

19.  Heplication  to  plea  alleging  hreach  of  the  peace. 

§  375.  If  the  defendant  justifies  that  he  had  a  right  to 
imprison  the  plaintiff  for  a  certain  reasonable  time  to  pre 
serve  the  peace,  the  time  is  divisible,  and  the  plaintiff  may, 
by  his  replication,  deny  that  there  was  any  cause  for  im- 
prisoning him,  and  if  there  was,  that  the  imprisonment  was 
for  a  longer  time  than  was  proper.  A  declaration  in  a  tres- 
pass alleged  that  the  defendant  on  a  certain  day  assaulted 
the  plaintiff  and  imprisoned  him,  and  kept  and  detained  him 
so  imprisoned  for  a  long  time,  to  wit,  for  the  space  of  twenty- 
four  hours.  The  defendants  pleaded  "as  to  the  said  im- 
prisoning the  plaintiff,  and  keeping  and  detaining  kim  in 
j^rison,"  that  the  plaintiff  made  a  disturbance  in  and  outside 
a  ckurck  during  divine  service,  and  committed  a  breach  of 
the  peace,  and  in  order  to  prevent  such  disturbance  and  pre- 
serve the  peace,  tke  defendants  "did  a  little  imprison  the 
plaintiff,  and  keep  and  detain  him  irnprisoned  for  a  reasona- 
ble time  in  that  behalf,  to  wit,  until  he  ceased  such  disturb- 
ance and  breach  of  the  peace,  to  wdt,  for  tke  space  of  two 
hours."  The  plaintiff  replied  de  injuria,  and  also  new  as- 
signed that  the  defendants  imprisoned  him  after  he  kad 
ceased  the  disturbance  and  breach  of  the  peace.  It  was  keld 
on  special  demurrer  tkat  tke  replication  and  new  assignment 
were  not  double.^ 

20.  Replication  to  plea  justifying  under  process. 
§  376.    A   plea  justifying   under   insufficient   autkority 
skould  be  traversed  by  the  plaintiff.     Where,  tkerefore,  in 
an  action  for  assault  and  false  imprisonment,  tke  defendant 

'  Poor  V.  Taggart,  37  N.  Hamp.  544;  1  Saund.  299,  «.  6;  2  lb.  5,  n.  3. 
""  Worth  V.  Terrington,  2  Dowl.  &  L.  352;  13  Mees.  &  W.  781 ;  14  L.  J.  N.  8. 
133. 

Vol.  I.— 23 


338  FALSE    IMPRISONMENT.  §  377. 

justified  under  a  writ  sued  out  by  liim  as  attorney  for  J.  M. 
against  the  plaintiff,  which  was  delivered  to  the  sheriff,  who 
by  virtue  thereof  arrested  and  detained  the  plaintiff,  and  the 
plaintiff  instead  of  traversing  the  plea,  as  he  should  have 
done  if  the  arrest  were  iri-egularly  made  by  the  sheriff's 
officer  without  a  sufficient  warrant  from  the  sheriff,  new  as- 
signed that  the  trespass  complained  of  was  upon  another  and 
different  occasion  than  that  stated  in  the  plea,  and  after  the 
supposed  arrest  therein  mentioned ;  it  was  held  that  the  de- 
fendant on  proof  of  the  fact  as  before  stated  was  entitled  to 
a  verdict.^ 

§  377.  But  when  the  original  arrest  was  lawful,  and  the 
plaintiff  seeks  to  recover  on  the  ground  of  a  wrongful  re- 
arrest, he  should  new  assign.  Where,  therefore,  to  assault 
and  false  imprisonment  the  defendant  justified  under  a  capias 
ad  respondendum^  and  the  plaintiff'  replied  that  the  defendant 
released  him  from  tlie  arrest,  and  afterward  arrested  him 
again,  and  prayed  judgment  because  the  defendant  had  ac- 
knowledged the  trespass,  it  was  held  that  the  plaintiff  ought 
to  have  new  assigned.^  The  same  rule  applies  in  case  of 
unjustifiable  detention.  Accordingly,  where  in  an  action  for 
an  assault  and  false  imprisonment,  the  declaration  contained 
two  count,s,  and  the  defendant  pleaded  first  the  general  issue, 
and  secondly,  that  he  and  one  A.  B.  being  bail  for  the  plaint- 
iff in  an  action  still  pending,  he  (the  defendant)  seized  the 
plaintiff'  to  render  him  in  discharge  of  the  recognizance 
entered  into  by  him  and  A.  B.,  and  detained  him  until  he 
made  satisfaction  as  to  the  demand  for  which  the  action 
was  brought;  and  the  plaintiff  replied  de  injuria,  and  it  ap- 
peared that  the  defendant,  in  addition  to  detaining  the  plaint- 
iff until  he  had  made  satisfaction  for  such  demand,  kept  him 
in  custody  an  hour  afterward,  and  until  he  paid  the  expenses 
incurred  by  the  defendants  becoming  bail ;  it  w\a3  held  that 
the  plaintiff  ought  to  have  newly  assigned  in  order  to  recovci- 

'  Oakley  v.  Davis,  IG  East,  82.  "  Scott  v.  Dixon,  2  Wils.  3. 


§  378.  REPLICATIONS  TO   PLEAS.  339 

for  that  part  of  the  detention  and  imprisonment  which  was 
unjustifiable.^ 

§  378.  If  the  plea  seeks  to  justify  a  commitment  of  the 
plaintiff  under  a  judge's  order  which  the  plea  avers  was  made 
pursuant  to  the  statute,  a  replication  that  the  judge  did  not 
make  an  order  as  alleged  will  be  sustained  by  proof  that, 
althougli  an  order  was  made,  it  was  not  authorized  by  law. 
In  an  action  for  false  imprisonment,  the  defendant  pleaded  in 
justification  a  judgment  recovered  in  an  inferior  court  of 
record,  and  an  order  subsequently  made  by  the  judge  of  that 
court  for  the  payment  of  the  debt  and  costs  by  the  plaintiff 
by  instalments,  and  showing  that  such  instalments  were  not 
paid,  and  that  the  judge  had  thereupon  ordered  the  com- 
mittal of  the  plaintiff.  The  plea  then  alleged  that  the  judge 
"  duly  and  according  to  the  form  of  the  statute  in  such  case, 
then  and  there  made  a  warrant  in  writing,"  setting  out  a  war- 
rant of  commitment,  and  averring  that  the  defendant,  as  the 
attorney  for  the  judgment  creditoi',  delivered  the  warrant  to 
the  officers,  by  whom  and  under  which  warrant  the  plaintiff 
was  arrested.  To  this  plea,  the  plaintiff  replied  that  the  judge 
did  not  order  that  the  plaintiff  should  be  committed  modo  ei 
forma.  The  defendant  at  the  trial  produced  a  warrant  of 
commitment  corresponding  with  tliat  described  in  the  plea. 
But  neither  the  warrant  so  produced,  nor  that  described, 
showed  on  the  face  of  it  that  there  had  been  any  previous 
summons  to  the  plaintiff  to  show  cause  why  he  should  not 
be  committed.  It  was  lield  that  the  warrant  so  produced 
was  invalid,  and  that  the  plaintiff  was  entitled  to  have  the 
verdict  found  for  him  on  the  issue  on  the  second  plea,  as  that 
plea  to  be  good  must  be  understood  to  allege  that  the  judge 
made  a  valid  order.^ 

'  Lambert  v.  Hodgson,  8  Moore,  336;  1  Bing.  317. 

'  Kinning  v.  Buchanan,  13,  Jur.  813;  18  L.  J.  C.  P.  333. 

*  In  an  action  for  false  imprisonment,  where  the  defendant  justifies  the  com- 
mitment as  a  magistrate  for  a  liailable  offense  in  consequence  of  an  information 
upon  oath,  the  phiintill  under  the  general  replication  de  injuria  sua  propria,  &c  , 
cannot  give  in  evidence  a  teiuhtr  and  refusal  of  bail,  but  ought  to  have  replied  it 
specially  (Sayre  v.  Rockford,  2  W.  Black,  lUiS). 


340  FALSE  imprisonme:nt.  §  379. 

§  379.  A  replication  to  a  pica  justifying  under  process, 
that  the  process  was  set  aside  by  a  judge's  order,  must  allege 
the  grounds  upon  which  the  order  was  granted.  In  an  action 
for  false  imprisonment,  the  defendant  pleaded  that  he  recov- 
ered a  judgment  against  the  plaintiff,  and  sued  out  a  ca.  sa. 
thereon  (the  judgment  being  in  full  force),  under  which  ca. 
sa.  the  plaintiff  was  arrested,  <fec.  Replication  that  the  ca.  sa.., 
after  the  issuing  thereof,  and  before  the  commencement  of 
the  suit,  w^as  set  aside  by  a  judge's  order,  not  averring  the 
grounds  of  such  order.  The  replication  was  held  bad  on 
special  demurrer,  inasmuch  as  the  writ  might,  under  suppos- 
able  circumstances,  have  been  set  aside  for  reasons  w^hich 
w^ould  have  been  ground  of  error,  and  would  not,  therefore, 
have  prevented  such  writ,  until  set  aside,  from  being  a  justi- 
fication to  parties  enforcing  it ;  the  replication  not  negativing 
the  existence  of  such  circumstances.^  To  an  action  for  false 
imprisonment,  the  defendant  pleaded  that  a  judgment  was 
recovered  against  the  plaintiff,  and  that  a  ca.  sa.  issued  there- 
on, under  w^hich  he  was  arrested.  The  plaintiff  replied  that 
the  judgment  was  signed  upon  a  warrant  of  attorney,  and 
that  the  judgment  and  ca.  sa.  were  set  aside  by  a  judge's 
order,  which  was  afterward  made  a  rule  of  court,  on  the 
ground  that  the  warrant  of  attorney  was  never  delivered  as 
a  complete  authority  to  do  or  suffer  any  of  the  acts  therein 
specified,  but,  as  an  escrow,  to  take  efl'ect  in  a  certain  event 
which  had  never  happened,  and  was  to  be  kept  by  the 
plaintiff  in  his  own  possession  until  such  event  should  hap- 
pen ;  and  that  the  defendant,  by  an  improper  contrivance, 
obtained  and  kept  possession  of  it,  without  the  plaintiff's 
consent ;  that  judgment  was  signed  under  color  of  the  said 
document,  and  the  ca.  sa.  issued  upon  the  judgment.  It  was 
held,  on  demurrer,  first,  that  the  rej^lication  was  good,  as  it 
sufficiently  appeared  that  the  ca.  sa.  was  set  aside,  not  on  the 
ground  of  its  being  erroneous,  but  on  the  ground  of  irregu- 
larity or  want  of  good  faith ;  secondly,  that  the  replication 


'  Prentice  v.  Harrison,  4  Q.  B.  853 ;  Rankin  v.  De  Medina,  9  Jur. 


§  380.  EVIDENCE.  341 

was  not  bad  in  omitting  to  state  that  the  order  was  made  a 
rule  of  court  before  the  commencement  of  the  suit,  inasmuch 
as  it  was  not  necessary  that  that  fact  should  be  stated ; 
thirdly,  that  nul  tiel  record  would  not  be  the  proper  repli- 
cation to  such  a  plea.^ 

21.  Evidence. 

§  380.  Proof  must  be  given  of  facts  and  circumstances 
from  which  the  judge  and  jury  may  decide  whether  there 
was  or  was  not  an  unlawful  restraint  or  detention  of  the 
person."'  It  is  not  enough  for  witnesses  to  testify  that  they 
considered  the  plaintiff  was  in  custody,  and  thought  that  he 
was  under  restraint.^  If  a  party  be  taken  into  custody  by 
an  officer  on  a  warrant,  the  signature  of  which  is  proved 
to  be  in  the  handwriting  of  the  defendant,  a  magistrate,  this 
\^  Ijriina  facie  evidence  against  the  defendant,  without  further 
proof,  that  the  warrant  was  issued  by  him.^  One  of  two 
coplaintiifs  in  an  action  in  the  county  court,  uttered  a 
threat  that  he  would  enforce  against  the  defendant  an  in- 
valid order  of  the  county  court.  The  defendant  was  sub- 
sequently arrested  under  a  warrant  issued  upon  the  order. 
It  was  the  practice  of  the  county  court  to  give  plaintiffs 
a  plaint  note  to  the  clerk  of  the  court.  It  was  held  in  an 
action  for  false  imprisonment  against  the  plaintiff  who  uttered 
the  threat,  that  there  was  evidence  to  go  to  the  jury,  that  he 
was  the  person  who  sued  out  the  warrant.^  Where  process 
is   issued    upon  the  complaint  of  a  grand  juror,  the  return 


'  Brown  v.  Jones,  15  Mees.  &  W.  191;  3  Dowl.  &  L.  678;  L.  J.  N.  S.  210. 
'  Cant  V.  Parsons,  6  Car.  &  P.  504.  =  Mason  v.  Barker,  1  Car.  &  K.  100, 

*  Akley  v.  Dale,  3  Prac.  R.  433;  15  Jur.  1013;  30  L.  J.  C.  P.  333. 

*  Trespass  for  assaulting  and  imprisoning  the  plaintiff.  Plea  that  he  was 
wilfully  Ijreaking  down  the  defendant's  fences,  wherefore  the  defendant  arrested 
him  and  took  him  before  a  magistrate.  Replication  that  the  plaintiif  broke  the 
fences  in  the  bona  fide  assertion  of  a  right  of  way ;  without  this,  that  he  broke 
them  wilfully,  or  for  any  other  purpose  than  in  the  exercise  of  his  right  of  way. 
Rejoinder  tliat  the  plaintiif  was  wilfully  committing  damage  and  spoil  to  the 
defendant's  property.  It  was  lield  that  proof  of  the  existence  of  a  right  of 
way  over  the  locua  in  quo  was  properly  received  with  a  view  to  show  the 
character  of  tiie  plaintifl''s  act  (Looker  v.  Ilalcomb,  4  Bing.  183;  13  Moore, 
410). 


342  FALSE   IMPRISOXMENT.  §  381. 

of  tlie  officer  is  prima  facie  evidence  of  an  arrest  under 
such  warrant,  as  well  against  the  grand  juror  as  against  the 
officer.-^  But  when  the  defendant  justifies  under  a^.^«,  and 
the  plaintiff  replies  a  detention  after  a  bail  bond  given,  an 
actual  arrest  must  be  proved;  proof  of  the  execution  of  the 
bail  bond,  coupled  with  the  admission  of  the  trespass  in  the 
special  plea,  not  being  sufficient.^ 

S  381.  An  alleo-ation  in  the  usual  form  that  the  offense 
was  committed  with  force  and  arms,  does  not  require  proof 
of  actual  violence.^  The  gravamen  of  the  action  is  the 
unlawful  interference  with  the  person  of  the  plaintiff.  And 
as  the  general  rights  of  personal  liberty  are  acknowledged 
and  secured  by  the  law,  an  interference  with  them  is  pre- 
sumed prima  facie  to  be  unlawful ;  and  the  plaintiff  has 
only  to  prove  the  fact  of  such  interference  to  put  his  ad- 
versary upon  the  defense.  The  presumption  that  everything 
which  has  been  done  has  been  rightly  transacted,  is  en- 
countered and  rebutted  by  the  presumption  that  an  actual 
interference  with  the  person  of  an  individual  without  his 
consent,  is  wrongful.  Upon  proving  such  interference  in  an 
action  where  that  is  the  gravamen^  the  plaintiff  has  proved 
prima  facie,  all  that  he  has  alleged;  and  in  order  to  justify 
such  an  act,  the  other  party  must  allege  in  pleading  where 
special  pleading  is  required,  and  prove  where  general  plead- 
ing is  allowed,  all  the  circumstances  necessary  to  show  a 
right  thus  to  interfere.^  Immaterial  allegations  need  not  be 
proved.  Where  a  declaration  which  consisted  of  one  count 
averred  that  the  plaintiff  was  imprisoned  in  a  shop,  a  station- 
house,  and  at  a  police  office,  and  the  only  imprisonment  was 
in  the  shop,  a  verdict  having  been  found  for  the  plaintiff, 
the  court  declined  to  order  the  verdict  to  be  entered  as 
to  part  of  the  connt  for  tlje  plaintiff,  and  as  to  the  residue 
for   the  defendant.^     So  likewise,  where  in  action  for  false 


'  Allen  V.  Gray,  11  Conn.  95.  '^  Reece  v.  GrifBths,  5  M.  &  R.  120. 

=  A'ite.  294.  "  Perry  v.  Buss,  15  N.  Hamp.  222. 

"  Myers  v.  Goodchild,  8  Car.  &  P.  313. 


§  382.  EVIDENCE.  343 

imprisonment,  the  defendant  pleaded  that  the  plaintiff  had 
stolen  feathers  from  a  bed  in  a  ready  furnished  bed  room  let 
to  him  by  the  defendant,  and  that  he  therefore  gave  the 
plaintiff  into  the  custody  of  a  policeman  who,  because  the 
plaintiff  resisted,  beat  the  plaintiff"  and  took  him  to  a  station- 
house  ;  and  there  was  no  evidence  either  of  any  resistance 
by  the  plaintiff,  or  of  any  blow  given  by  the  policeman, 
but  the  other  allegation  was  proved ;  it  was  held  that  the 
plea  was  sufficiently  established.^ 

§  382.  The  plaintiff  may  prove  the  animus  of  the  de- 
fendant in  committing  the  act ;  ^  and  every  circumstance  is 
admissible  which  accompanies  and  gives  character  to  the 
trespass.^  The  plaintiff,  the  secretary  of  a  joint  stock  bank 
in  London,  with  a  bank  at  D.,  went  with  the  cashier  to  the 
latter  place,  with  a  paper  purporting  to  be  an  order  upon 
the  party  having  charge  of  the  branch  bank,  to  deliver  up 
to  them  the  books  and  moneys  in  his  custody.  The  de- 
fendant, one  of  the  directors  of  the  bank,  seeing  a  light  in 
the  banking  house  at  an  unusual  hour,  went  there,  and  not 
being  satisfied  of  their  authority  to  act  as  they  were  doing, 
placed  the  plaintiff  and  the  cashier  in  the  custody  of  a 
policeman,  who  handcuffed  them  and  put  them  in  the  cage 
for  the  night.  In  an  action  for  false  imprisonment,  evidence 
that  the  defendant  had  on  the  following  morning  gone  to 
the  banking  house  in  London,  broken  open  the  desks  of  the 
secretary  and  cashier,  and  abstracted  papers,  for  the  purpose 
(as  was  suggested)  of  depriving  them  of  the  means  of 
justifying  their  conduct,  was  held  to  have  been  properly  re- 
ceived.^ *     Conversations  with,  and  threats'made  to  the  plaint- 

>  Atkinson  v.  Wame,  6  Car.  &  P.  687. 
"  Brushaber  v.  Stegemann,  22  Mich.  266. 

'  Colby  V.  Jackson,  12  N.  Hamp.  526 ;  Bracegirelle  v.  Orford,  2  M.  «&  S.  77 ; 
WoodiiU  V.  McMillan,  38  Ala.  622. 

*  Edgell  V.  Francis,  1  Scott  N.  R.  118;  1  Man.  &  G.  222. 

*  In  Edgell  v.  Francis,  supra,  the  defendant  having  in  mitigation  of  damages 
called  witnesses  to  prove  that  nearly  all  the  money  in  the  bank  at  the  time  of 
the  transaction  was  composed  of  his  own  balance,  the  plaintiff  was  ;)ermitted  to 
cross-examine  them  generally,  as  to  the  existence  of  bill  transactions  between 
the   defendant   and   the    bank  in  Loudon,  for  the  purpose  of  insinuating  that 


344  FALSE  IMPRISONMENT.  §§  383,  384. 

iff  by  the  defendant  previous  to  the  arrest,  and  statements 
of  the  defendant  after  the  arrest  concerning  his  motives,  are 
admissible  in  evidence  against  him  to  show  malice.^ 

§  383.  If  the  imprisonment  be  proved  or  admitted,  the 
burden  of  justifying  it  is  on  the  defendant.  Where,  there- 
fore, the  defendant  caused  the  plaintiif  to  be  apprehended 
under  a  justice's  warrant,  it  was  held  that  the  plaintiff  might 
maintain  the  action  without  producing  the  warrant.^  So, 
likewise,  where  in  an  action  against  an  assessor  of  taxes,  the 
defendant  admitted  the  imprisonment  of  the  plaintiff,  and 
relied,  in  his  defense,  solely  upon  the  tax  warrant  issued  by 
him  and  the  other  assessors,  it  was  held  that  the  burden  of 
proof  was  on  the  defendant  to  show  that  the  whole  town  had 
been  districted  territorially ;  for  unless  that  had  been  done, 
the  tax  was  illegal.^  "^ 

§  384.  For  the  justification  of  an  arrest  by  an  officer  and 
those  acting  in  his  aid,  it  is  not  necessary  to  give  other  evi- 
dence than  that  furnished  by  the  process  of  the  court  valid 
on  its  face.^  In  an  action  by  A.  and  B.,  his  wife,  against  C, 
for  the  false  imprisonment  of  B.,  C.  justified  under  an  execu- 
tion against  the  plaintiffs  for  costs  in  a  former  action  brought 
by  them  against  C,  alleging  the  recovery  of  the  judgment, 
the  issuing  of  the  ca.  sa.,  its  delivery  to  the  sheriff",  and  the 

though  the  local  balance  was  in  the  defentlaut's  favor,  the  general  balance  might 
be  against  hiiu.  It  was  held  this  was  no  ground  for  a  new  trial;  and  the  jury 
having  given  200/.  damages,  it  was  held  not  excessive. 

'-  Josselyu  v.  McAllister,  35  Mich.  45. 

^  Ilolroyd  v.  Lancaster,  11  Moore,  441 ;  s.  c.  3  Bing.  492. 

'  Bassett  v.  Porter,  10  Cush.  418. 

*  Henry  v.  Lowell,  16  Barb.  268;  Savacool  v.  Boughton,  5  Wend.  170. 

*  In  a  suit  against  two,  a  verdict  in  favor  of  one,  rendered  in  a  former  action 
brought  i>y  liim  against  the  present  plaintiff,  is  not  evidence  to  establish  oue  of 
several  facts  alleged  in  justification.  In  an  action  for  assault  and  battery  and 
false  imprisonment,  brought  by  a  sailor  agaiust  the  master  and  mate  of  a  vessel, 
the  defendants  alleged  in  justification  that  the  plaintiff  destroyed  a  quantity  of 
cheese  on  board  belonging  to  the  mate,  and  also  used  insulting  language  to  the 
mate,  and  that  he  was  thereupon  confined  in  the  run  of  the  vessel.  To  prove  the 
destruction  of  the  cheese,  the  defendants  offered  in  evidence  the  record  of  a 
■court  of  competent  jurisdiction  in  an  action  previously  brought  by  the  mate 
against  the  sailor  for  the  destruction  of  the  cheese,  in  which  judgment  was  ren-. 
dered  for  the  mate;  but  it  was  held  that  such  record  was  not  admissible  (Ryer 
y.  Atwater,  4  Day,  431j. 


§  385.  EVIDENCE.  345 

arrest  of  B.  tliereuncler.  The  plaintiffs  replied,  confessing 
the  recovery  of  the  judgment  and  the  issuing  of  the  ca.  sa.^ 
de  injuria  sua  ])ropria  absque  residuo  causce.  It  was  held 
that,  as  the  judgment  and  writ  were  admitted  on  the  record, 
upon  the  warrant  and  arrest  of  B.  under  it  being  proved  by 
the  plaintiffs,  the  justification  was  made  out  without  any  evi- 
dence on  the  part  of  the  defendant.^  *  If,  however,  an  officer, 
in  making  an  arrest,  resorts  to  extraordinary  force,  and  the 
excess  be  set  up  as  a  ground  of  recovery,  he  must  show  that 
the  force  employed  was  no  greater  than  the  nature  of  the 
case  demanded.  Where,  in  an  action  of  trespass  against  the 
sergeant-at-arms  of  the  House  of  Commons,  for  foi'cibly,  and 
with  the  assistance  of  armed  soldiers,  breaking  into  the  mes- 
suage of  the  plaintiff  (the  outer  door  being  shut  and  fastened), 
and  arresting  him  there,  the  defendant  justified  under  the 
speaker's  warrant  to  arrest  the  plaintiff,  a  member  of  the 
House,  for  a  breach  of  privilege,  to  which  there  was  a  nevv^ 
assignment  of  excess  in  using  military  force,  it  was  held 
that  evidence  of  acts  of  violence  of  the  mob  committed  in 
parts  adjacent,  though  out  of  view  and  hearing  of  the  plaintiff 
in  his  house,  if  they  appeared  to  be  connected  with  the  same 
purpose  as  actuated  those  about  the  plaintiff's  house,  might 
be  admitted  to  show  the  danger  and  difficulty  of  executing 
the  warrant  by  force  against  the  plaintiff  in  his  own  house 
without  the  aid  and  protection  of  the  military,^ 

§  885.  Where,  in  an  action  against  an  ofiicer,  the  defend- 
ant justifies  under  an  execution  issued  by  a  justice  of  the 
peace,  the  plaintiff  will  not  be  allowed  to  prove  that  the  de- 
fendant fraudulently  served  the  original  process.     The  judg- 


'  Newton  v.  Boodle,  3  C.  B.  795. 

""  Burdett  v.  Coleman,  14  East,  163;  13  lb.  37.  And  see  Burdctt  v.  Abbott, 
5  Dow,  16  V,  14  East,  1;  4  Tfunt.  410. 

*  Where  in  an  action  against  a  sheriff  for  false  imprisonment,  lie  justifies  by 
virtue  of  a  State's  warrant  apiinst  the  plaintiff,  a  copy  of  the  iudictin.'nt  found 
against  the  ])laintiff  on  the  charge  for  which  he  was  arrested  is  not  admissible; 
nor  is  the  fact  tliat  an  indictUK^nt  was  found  against  him  admissible,  if  at  all, 
without  proving  tlie  whole  of  the  proceedings  (McCully  v.  Malcom,  9  Humph. 
187). 


346  FALSE  IMPRISONMENT.  §§  386,  387. 

meut  could  not  be  impeaclied  in  this  collateral  way.  So  far 
as  its  validity  is  concerned,  the  return  of  the  service  of  the 
summons  would  be  conclusive,  except  on  a  direct  proceeding 
to  reverse  the  judgment  for  irregularity.  The  remedy  of  the 
party  injured  would  be  either  by  action  for  a  false  return,  or 
by  a  writ  of  error.^ 

§  380.  Where  several  are  charged,  and  a  portion  of  the 
imprisonment  was  committed  before  one  of  the  defendants 
was  at  all  concerned  in  the  transaction,  that  defendant  must 
be  acquitted  ;  or  else  the  evidence  must  be  confined  to  what 
took  place  after  that  defendant  became  implicated.^*  If  in  an 
action  of  trespass  committed  by  three,  with  a  count  for  false 
imprisonment,  the  trespass  is  established  against  all,  but  the 
imprisonment  against  only  one,  the  plaintiff  cannot  abandon 
the  first  trespass  proved  against  all  three,  and  go  on  with  the 
case  as  to  the  imprisonment  by  the  one  defendant  only.^ 

§  387.  In  an  action  against  a  private  person  for  giving 
the  plaintiff  into  custody  on  a  charge  of  felony,  reasonable 
and  probable  cause  of  suspicion  is  good  evidence  in  mitiga- 
tion of  damages  under  the  general  issue.^  It  was  accordingly 
held  that  the  fact  that  the  plaintiff,  at  and  shortly  before  the 


'  Allen  V.  Martin,  10  Weud.  300;  Putnam  v.  Man,  3  lb.  202. 

°  Aai'von  V.  Alexander,  3  Camp.  36. 

'  Tait  V.  Plan-is,  6  Gar.  &  P.  73 ;  1  ,M.  &  Rob.  283. 

*  Sug-g  V.  Pool,  2  Stew.  &  Port.  196;  Rogers  v.  Wilson,  Minor,  407. 

*  If  A.  imprison  B.,  and  in  continuation  of  that  imprisonment  deliver  him 
into  the  charge  of  C,  who  keeps  him  in  custody,  the  acts  and  declarations  of  C. 
are  evidence  against  A.  in  an  action  for  false  imprisonment  (Powell  v.  Hodgetts, 
2  Car.  &  P.  433). 

In  an  action  against  two  persons  for  false  imprisonment,  a  wit^ness  for  the 
plaintiff  stated  that  one  of  the  defendants  iiad  said  before  a  magistrate  that  he 
was  authorized  by  the  other  defendant.  The  judge  told  the  jury  that  what  one 
defendant  hud  said  was  not  evidence,  and  that  they  must  not  allow  it  to  influence 
their  minds,  but  it  was  not  possible  to  exclude  it,  because  it  was  evidence  against 
the  defendant  who  had  uttered  it.  It  was  held  that  the  caution  given  by  the 
judge  to  tlie  jury  removed  all  grounds  of  complaint  as  to  the  reception  of  the 
statement  (Peat  v.  Utterton,  3  Jur.  919). 

Where  on  the  trial  of  an  action  for  assault  and  false  imprisonment  on  a 
charge  of  felony,  the  plaintiif's  counsel  asked  his  witness  what  was  said  by  the 
defendant  when  the  parties  were  before  the  magistrate,  it  was  held  that  the  de- 
fendant's counsel  might  ask  on  cross-examination  what  Vyas  said  by  the  magis- 
trate (Richards  v.  Turner,  1  Car.  &  M.  411-). 


§  388.  EVIDENCE-  347 

arrest,  was  commonly  believed  to  belong  to  a  band  of  coun- 
terfeiters in  tlie  neighborhood,  might  be  proved,  but  that  the 
allegation  that  the  plaintiff  belonged  to  the  band  and  had 
passed  counterfeit  money  knowingly  and  with  intent  to  de- 
fraud the  public,  must  be  specially  pleaded.^  In  Perkins  v. 
Vaughau,-  a  bill  of  exchange,  purporting  to  be  accepted  by 
A.  B..  was  presented  to  him  by  the  defendant  for  payment, 
upon  which  he  said  that  the  acceptance  had  been  forged  by 
the  plaintiff.  Defendant  and  plaintiff,  in  company  with  a 
policeman,  afterward  called  upon  A.  B.,  and  the  defendant 
asked  him  to  repeat  the  charge,  which,  after  some  conversa- 
tion with  the  plaintiff',  he  would  not  do.  The  plaintiif  then 
brought  trespass  against  the  defendant  for  false  imprison- 
ment. The  pleas  on  the  record  were  not  guilty  and  the 
facts.  At  the  trial,  A.  B.  was  not  called  by  tlie  defendant, 
but  the  conversation  was  given  in  evidence.  The  jury  found 
for  the  defendant  generally.  It  was  held,  on  motion  for  a 
new  trial,  that  the  convei'sation  was  rightly  received  in  evi- 
dence as  part  of  the  7'es  gestce^  and  also  would  have  been 
proper  under  the  general  issue  in  mitigation  of  damages  (had 
the  verdict  been  for  the  plaintiff),  although  malice  was  not 
the  gist  of  such  an  action.* 

§  388.  The  question  of  reasonable  ground  of  suspicion  in 
actions  for  false  imprisonment,  is  one  of  law ;  ^  unless  the 
evidence  out  of  which  it  arises  is  conflicting,  in  which  event 
it  is  the  duty  of  the  court  to  instruct  the  jury  what  facts,  if 
established,  will  constitute  probable  cause,   and  submit  to 


'  Wiisson  V.  Canfield,  6  Blackf.'  407.  '  G  Jur.  114,  C.  P. 

=  Hill  V.  Yates,  2  Moore,  80;  Bulkeley  v.  Keteltas,  3  Seld.  384. 

*  It  will  be  a  justification  for  an  arrest  by  a  private  person  for  felony,  that 
the  evidence  of  the  guilt  of  the  accused  preponderated;  and  the  defendant  may 
justify  the  firing  of  a  gnu  at  tlie  accused  by  proof  of  its  necessity  (Lander  v. 
Alilis,  ;J  Oreg.  \)n).  Where  a  plea  of  justification  in  such  a  case  states  that  the 
plaintiif  coaunitted  the  felony,  the  jury  must  try  tliat  question  in  the  same  way 
HS  if  they  were  sitting  in  tlie  criminal  court  trying  the  plaintiff  for  the  offense 
itself;  and  if  a  witnej-s,  who  admits  tiiat  he  stole  similar  property  at  the  same 
-time,  be  called  to  sustain  the  plea,  though  he  is  not  ex;'.ctly  in  the  situation  of 
an  accomplice,  yet  it  seems  that  his  testimony  ought  to  receive  some  confirma- 
tion (Kiciiards  v.  Turner,  supra). 


348  FALSE   IMPRISONMENT.  §  389. 

tliem  the  determination  of  sucli  fkcts.^  In  West  v.  Baxen- 
dale,^  a  plea  justifying  the  apprehension  of  the  plaintiff  on 
suspicion  of  felony,  set  out  various  circumstances  of  sus- 
picion, and  amongst  others,  stated  a  conversation  alleged  to 
have  been  had  by  the  plaintiff  with  A.  At  the  trial,  the 
whole  of  the  plea  was  proved,  except  that  the  conversation 
alleged  to  have  been  had  by  the  plaintiff  with  A.  was  had 
with  B.  The  defendant  applied  to  the  judge  to  amend  the 
plea,  by  inserting  therein  the  name  of  the  right  person,  which 
was  refused.  In  leaving  the  case  to  the  jury,  the  judge  told 
them  that  they  must  exclude  from  their  consideration  the 
statement  as  to  the  conversation  Avith  A.,  and  say  whether 
the  facts  which  were  proved,  and  w^hicli  were  known  to  the 
defendant  at  the  time  he  caused  tha  plaintiff  to  be  appre- 
hended were  sufficient  to  cause  a  reasonable  and  cautious 
man,  acting  hona  fide  and  without  prejudice,  to  suspect  the 
plaintiff  of  the  offense  charged.  It  was  held  a  misdirection, 
inasmuch  as  it  was  leaving  to  the  juiy  what  it  was  the  prov- 
ince of  the  judge  to  determine,  and  that  the  amendment  was 
one  which  mio'ht  have  been  made  upon  terms. 

§  389.  A  reasonable  ground  of  suspicion,  induced  by  cir- 
cumstances sufficiently  strong  to  lead  a  cautious  person  to 
believe  that  the  charo-e  made  was  true,  would  constitute 
probable  cause.  In  an  action  for  false  imprisonment,  it  ap- 
peared that  the  plaintiff"  was  arrested  upon  the  charge  of 
being  about  to  remove  his  property  with  intent  to  defraud 
his  creditors,  and  as  especially  intending  to  defraud  the  de- 
fendant. The  evidence  upon  which  the  order  for  the  arrest 
was  granted,  was  the  affidavit  of  a  third  party,  to  the  effect 
that  the  plaintiff  said — when  informed  by  the  party  making 
the  affidavit  of  the  defendant's  intention  to  brinof  a  suit 
against  him  to  recover  damages  for  the  breach  of  the  agree- 
ment— that  if  the  suit  ^vas  brought,  he  would  take  good  care 
and  put  his  means  in  such  a  shape  that  the  defendant  would 
get  nothing  by  it ;  that  he  would  send  his  means  to  a  mer- 

'  Burns  v.  Erben,  40  X.  Y.  463.  ^  9  C.  B.  141;  19  L.  J.  C.  P.  149. 


§  390.  EVIDENCE.  349 

chant  ill  England,  a  person  known  to  the  plaintiff.  On  a 
motion  for  the  discharge  of  tlie  arrest,  the  plaintiff  explained 
what  he  meant  by  this  remark,  and  the  jndge,  in  view  of  the 
explanation,  and  from  the  additional  consideration  that  the 
action  was  one  in  which  nominal  damao;es  alone  could  be  re- 
covered,  granted  the  motion.  It  further  appeared  that  the 
defendant  admitted  that  the  plaintiff  had  told  him  that  he 
was  indebted  to  certain  persons  in  England ;  that  a  part  of 
the  funds  which  he  had  (eight  or  nine  thousand  dollars),  he 
had  obtained  from  them,  a  part  for  two  or  tliree  years,  and  a 
part  for  live  years;  and  the  plaintiff,  in  his  sworn  answer, 
stated  that  he  informed  the  defendant  that  lie,  the  j)laintift', 
had  $10,000  of  his  own  money,  and  relied  on  his  friend  for 
$10,000.  It  was  held  that  the  foregoing  facts  did  not  make 
out  a  want  of  probable  cause.^  '^' 

§  890.  The  defendant,  in  his  evidence  in  mitigation  of 
exemplary  damages,  should  not  be  confined  to  matters  which 
transpired  at  the  very  time  of  the  alleged  wrong.-  In  an 
action  for  giving  the  plaintiff  in  charge  to  a  police  officer,  the 
defendant  may  go  into  evidence  to  show  that  the  plaintiff 
had,  for, several  days,  1)een  in  the  habit  of  going  after  him 


'  Gordon  v.  Upham,  4  E.  D.  Smith,  9.         "  Prentiss  v.  Shaw,  56  Maine,  437. 

*  In  this  case,  the  court  said :  "If  the  defendant  had  a  claim  that  would  en- 
able him  to  maintain  the  action,  he  is  to  be  regarded  as  a  creditor,  no  matter 
what  amount  of  damages  he  might  recover;  and  it  cannot  be  presumed,  merely 
because  he  did  not  prosecute  the  action,  or  suffered  it  to  go  by  default,  that  he 
had  uo  such  claim.  *  *  *  -pjjg  plaintiff's  declaration  was  one  that  may  and 
would  naturally  have  induced  the  belief  that  he  intended  to  dispose  of  his  prop- 
ert}',  so  as  to  prevent  the  defendant  from  collecting  anything  by  a  judgment,  if 
he  should  obtain  one.  It  was  sutBcieut  to  warrant  the  suspicion  that  he  intended 
to  do  so." 

In  Miles  v.  Weston,  GO  111.  361,  it  was  proved  that  on  the  night  the  plaintiff 
was  arrested,  two  men  had  been  seen  in  front  of  the  defendant's  house ;  that 
when  any  one  came  near,  they  would  separate  and  then  meet  again ;  that  they 
did  this  an  hovir  and  a  half;  that  the  defendant,  becoming  alarmed,  obtained 
two  policemen ;  and  that  as  the  plaintitr  gave  no  account  of  himself,  but  ad- 
mitted tliat  he  had  been  there  two  houis,  one  of  the  policemen  arrested  him, 
and  witliout  any  direction  from  the  defendant  as  to  what  should  be  done  v/ith 
liim  after  the  arrest,  lie  was  taken  by  the  officer  to  the  station.  The  plaintiff' 
testified  on  the  trial  that  he  had  been  at  the  place  in  question  but  one  or  two 
minutes.  It  was  lield  that  the  plaintiff's  own  declaration  that  he  had  been  tliere 
two  hours,  was  sufficient  to  cause  the  officer  to  believe  him  to  be  one  of  two 
night  walkers  who  had  been  seen  liangiug  about  the  defendant's  house,  and  tliat 
it  ought  to  go  far  under  the  other  circumstances  of  the  case  in  mitigation  of 
damages,  if  not  to  justify  the  arrest. 


350  FALSE   IMPKISOXM'JJXT.  §  391. 

and  annoying  liim.^  It  may  properly  be  submitted  to  the 
jury  to  find  whether  the  defendant,  in  causing  the  arrest  of 
the  plaintiff,  was  actuated  by  a  regard  for  public  justice,  or 
desire  that  a  supposed  offender  should  be  punished,  or  in- 
tended to  make  use  of  criminal  proceedings  for  his  private 
benefit,  to  coerce  from  the  plaintiff  or  his  friends  the  pay- 
ment of  money.^  A  statement  which  is  averred  in  a  plea 
of  justification  to  have  been  made  to  A.,  but  which  was  in 
fact  made  to  B.,  is  admissible  to  show  that  the  defendant 
acted  with  proper  motives.^  ^  A  military  order  which  does 
not  amount  to  a  justification,  may  be  given  in  evidence  in 
mitigation  of  damages.*  Although  it  will  not  be  a  defense 
that  the  defendant  acted  under  the  advice  of  counsel,^  vet  it 
has  been  held  that  the  inexperience  of  the  attorney  who 
advised  and  instituted  the  proceedings  may  be  proved  in 
mitiofation  of  damaoces.®  f 

22.  Damages. 
§  391.  Exemplary  damages  are  only  proper  when  the 


'  Thomas  v.  Powell,  7  Car.  &P.  807.  =  Grinnell  v.  Stewart,  32  Barb.  544. 

'  West  V.  Baxendale,  9  C.  B.  141 ;  19  L.  J.  9.  P.  149. 

*  Carpenter  v.  Parker,  23  Iowa,  450,  "  Josselyn  v.  McAllister,  22  Mich.  300. 

*  Mortimer  v.  Thomas,  23  La.  Ann.  165. 

*  In  trespass  for  false  imprisonment  on  a  criminal  charge,  the  defendant 
cannot  cross-examine  as  to  the  bad  character  of  the  plaintiff,  nor  as  to  previous 
charges  made  against  him  (Downing  v.  Butcher,  2  M.  &  Rob.  374). 

In  an  action  for  causing  the  plaintiff  to  be  arrested  on  a  charge  of  stealing 
oysters  from  an  oyster  bed,  it  was  held  that  the  defendant  could  not,  in  order 
to  prove  good  faith  on  his  part,  prove  the  prior  conviction  of  a  third  party  for 
stealing  oysters  from  the  same  bed,  such  conviction  not  having  come  to  the  de- 
fendant's knowledge  at  the  time  of  causing  the  plaintiff's  arrest  (Thomas  v.  Rus- 
sell, 25  Eng.  L.  &  Eq.  R.  559). 

t  Although  evidence  which  ought  not  to  have  been  allowed,  be  admitted; 
yet  if  u  be  afterward  stricken  out,  and  the  jury  instructed  to  disregard  it,  the 
verdict,  if  sustained  by  the  other  evidence  in  the  case,  will  not  be  disturbed. 
Ill  ]\"an("eville  v.  Guernsey,  51  Barb.  99,  which  was  an  action  for  assault  and 
battery  and  false  imprisonment,  improper  evidence  was  admitted  against  the  ob- 
jecuon  of  the  defendant;  but  afterward,  and  before  the  testimony  was  closed, 
the  judge,  of  his  own  motion,  ordered  the  evidence  to  be  struck  out.  and  directed 
the  jury  to  disregard  it.  The  defendant  insisted  that  the  error  was  not  cured 
thereby,  as  the  evidence  might  have  had  an  influence  upon  the  minds  of  the 
jury.  It  was  held  that  if  the  verdict  could  not  be  supported  except  by  tlie  evi- 
dence in  question,  the  error  would  be  fatal;  but  that  as  the  questions  of  fact 
which  were  submitted  to  the  jury  were  found  in  the  plaintiff's  favor,  he  was  en- 
titled to  recover. 


§§  302,  303.  DAMAGES.  351 

wrong  was  committed  from  a  bad  motive.^ '"'  Where  tLe 
defendants,  acting  under  the  advice  of  counsel,  erroneously 
caused  the  plaintiff  to  be  arrested  under  a  writ  of  ne  exeat, 
it  was  held  not  to  furnish  evidence  of  malice  or  wilful  mis- 
conduct on  the  part  of  the  defendants,  so  as  to  entitle  the 
plaintiff  to  exemplary  damages.  And  the  same  was  held  as 
to  a  telegraiihic  dispatch  afterward  sent  to  the  judge  re- 
questing him  not  to  vacate  the  writ,  or  discharge  the  plaint- 
iff from  arrest,  until  a  hearing  could  be  had ;  and  also  as  to 
the  statement  of  the  defendants,  in  their  depositions,  that 
they  were  displeased  when  they  heard  of  the  plaintiff's  dis- 
charge, and  did  not  approve  of  the  action  of  the  judge  in 
discharging  him.^ 

§  392.  But  although  the  false  imprisonment  was  not 
malicious,  yet  the  plaintiff  is  entitled  to  damages  for  loss 
of  time,  interruption  of  business,  and  bodily  and  mental 
suffering;'^  and  he  may  recover  more  than  nominiil  damages, 
without  alleging  or  proving  special  damage.*  Where  it  was 
proved  that  the  plaintiff  was  arrested  for  refusing  to  testify 
under  a  void  complaint,  that  he  was  taken  in  charge  by  the 
sheriff  at  the  jail,  but  was  not  locked  in  the  cell  in  which 
he  slept,  being  allowed  to  visit  the  rooms  of  the  sheriff,  and 
only  prevented  from  leaving  the  jail-yard,  it  was  held  error 
in  the  court  to  instruct  the  jury  that  the  plaintiff'  could  only 
recover  nominal  damages  sufficient  to  pay  him  for  his  loss  of 
time  in  consequence  of  the  arrest.^ 

§  393.  Althou2;h  the  inconvenience  and  suffering;  raav 
have  ])een  slight,  yet  if  the  wrong  was  accompanied  by  per- 
sonal insult,  or  by  a  false  charge  of  a  violation  of  law,  exem- 


'  McCall  V.  McDowell,  1  Abb.  U.  S.  213. 

'  Bonesteel  v.  Bonesteel,  30  Wis.  511.  '  Parsons  v.  Harper,  16  Gratt.  64. 

*  Josselyn  v.  McAllister,  32  Mich.  300.  '•'  Page  v.  Mitchell,  13  Mich.  63. 

*  Where,  in  an  action  for  false  imprisonment  against  a  private  person,  in 
making  an  arrest  upon  strong  grounds  for  suspecting  larceny,  under  circum- 
stances which,  though  they  did  not  justify  the  defendant,  would  have  Justified 
an  officer,  a  verdict  of  $3,000  was  set  aside  as  excessive  (Reuck  v.  McGregor,  3 
Vroom,  70) 


352  FALSE   IMPRISONMENT.  §  394. 

plary  damages  may  be  recovered.^  Accordingly,  wliere  the 
defendant  pleaded  that  the  plaintiff  had  committed  a  felony, 
bnt  at  the  trial  his  counsel  abandoned  the  ]:)lea  and  exonerated 
the  plaintiff  from  the  charge,  it  was  held  that  the  putting 
such  a  plea  on  the  record  ought  to  be  taken  into  considera- 
tion by  the  jury  in  estimating  the  damages.^ 

§  394.  The  plaintiff  is  entitled  to  be  allowed  for  what  he 
has  been  compelled  to  pay  by  the  wrongful  act  of  the  defend- 
ant. Where  a  party,  who  had  been  committed  to  jail  for 
manslaughter  b}'-  a  coroner's  warrant,  and  afterward  admitted 
to  l^ail,  subsequently  got  the  inquisition  quashed,  it  was  held, 
in  an  action  by  him  against  the  coroner  for  false  imprison-' 
ment,  alleging  as  special  damage  that  he  had  been  obliged  to 
pay  money  to  procure  his  discharge,  that  he  might  recover 
the  costs  of  quashing  the  inquisition.^  '^  So,  likewise,  where 
a  party  vv'as  committed  for  the  non-payment  of  a  penalty  in  a 
case  where  the  magistrate  had  no  jurisdiction,  and  after  a 
part  of  the  imprisonment,  he  was  discharged  on  the  penalty 
being  paid,  it  was  held,  in  an  action  for  false  imprisonment 
against  the  magistrate,  that  the  jury  might  include  the 
amount  of  the  penalty  in  the  damages,  if  they  were  satisfied 
that  the  plaintiff  paid  it,  or  that  it  was  paid  in  such  a  way 
that  the  plaintiff"  was  liable  to  repay  the  amount  to  the  per- 
son who  actually  advanced  the  money.'*  f     In  a  recent  case  in 


'  Fellows  V.  Goodman,  49  Mo.  62 ;  Bauer  v.  Clay,  8  Kansas,  580. 
■'  Warwick  v.  Foulkes,  12  Mees.  &  W.  507;  1  Dowl.  &  L.  638;  13  L.  J.  K  S. 
109. 

'  Foxhall  V.  Barnett,  22  L.  J.  N.  S.  Q.  B.  7;  18  Jur.  41. 

*  Mason  v.  Barker,  1  Car.  &  K.  100. 

*  In  Foxhall  v.  Barnett,  s^iprn.  Lord  Campbell,  C.  J.,  said:  "If  the  plaintiff 
had  been  discharged  on  habeas  co7']n/s,  instead  of  being  admitted  to  bail,  and  had 
afterwards  got  the  inquisition  quashed.  I  should  have  thought  that  he  could  not 
have  included  the  cost  of  quashing  in  his  damages,  according  to  Holloway  v. 
Turner  (6  Q.  B.  92S).  But  here,  he  was  only  released  from  prison  upon  his  giv- 
ing bail  to  appear  and  take  his  trial.  He  was  still  liable  to  surrender  on  his  re- 
cognizances, and  was  not  a  perfectly  free  man  until  he  had  got  rid  of  the  inqui- 
sition. By  doing  that,  he  was  restored  to  his  original  state ;  but  until  then,  the 
effects  of  the  wrongful  imprisonment  were  not  done  away.  Therefore,  this  is 
damage  which  flows  from  the  wrongful  act  of  the  defendant,  and  the  plaintiff  is 
entitled  to  retain  his  verdict  for  the  full  amount  given." 

t  A  rule  having  been  obtained  for  discharging  a  party  illegally  arrested,  it 
was  referred  l)y  the  court  to  a  judge  at  chambers,  who  ordered  the  applicant  to 


§  395.  DAMAGES.  353 

Wisconsin,  the  plaintiff  alleged,  as  special  damage,  that  he 
was  obliged  to  employ  counsel  to  procure  his  release  from 
imprisonment,  at  an  expense  of  sixty  dollars ;  and  it  was  held 
that  such  special  damage  might  be  allowed,  although  it  was 
not  shown  that  the  counsel  fee  and  expenses  had  actually 
been  paid  by  the  plaintiff.^  But  to  entitle  the  plaintiff  to 
recover  for  such-  loss,  he  must  show  that  it  resulted  from  the 
injurious  act.  Accordingly,  in  an  action  for  assault  and  im- 
prisonment for  one  night,  brought  by  a  ship's  passenger 
against  the  captain,  it  was  held  that,  in  order  to  entitle  him 
to  recover  the  100^.  which  he  paid  for  his  passage  home  in 
another  vessel,  he  must  prove  that  he  had  reasonable  ground 
to  fear  a- renewal  of  the  ill  treatment,  and  that  he  left  the 
vessel  under  the  influence  of  such  fear,^  '^ 

§  395.  Where  it  appears  that  the  plaintiff',  previous  to 
bringing  the  action,  accepted  without  objection  a  small  sum 
in  satisfaction,  and  the  jury  find  a  large  amount  of  damages, 
the  verdict  will  be  set  aside.  A  beggar,  having  refused  to 
quit  the  defendant's  premises,  the  defendant  had  him  arrested, 
and  he  remained  in  custody  one  night  at  an  inn,  and  was 
taken  before  the  defendant  the  next  morning,  when  he  de- 
be  discharged,  and  offered  to  give  him  the  costs  of  his  application,  if  he  would 
undertake  to  bring  no  action  for  the  arrest;  but,  on  his  refusal,  made  no  order 
about  costs.  An  action  for  trespass  and  false  imprisonment  was  afterward 
brought,  laying,  among  other  things,  as  damage,  that  the  plaintiff  had  been 
obliged  to  pay,  and  had  paid,  a  large  sum  of  money  in  order  to  procure  his  dis- 
charge. There  was  no  distinct  evidence  of  payment  of  the  money  by  the  plaintiff 
to  his  attorney.  It  was  held,  first,  that  the  plaintiff  was  entitled  to  recover  his 
costs  as  special  damage  in  this  form  of  action;  but,  secondly,  that,  as  the  declar- 
ation alleged  actual  payment  of  them  by  him,  he  could  not  recover  that  part 
which  he  had  not  paid,  but  so  much  only  as  had  been  advanced  on  his  account 
by  his  attorney,  as  so  much  money  paid  by  himself  through  an  agent  (Pritchet 
V.  Boevy,  1  C.  &  M.  775 ;  3  Tyr.  949).  Semlle,  that,  had  the  count  only  alleged 
that  the  plaintiff  had  been  forced  and  obliged  and  became  liable  to  pay  damao-es 
for  such  liability  to  his  attorney,  he  might  have  then  recovered. 

'  Bonesteel  v.  Bonesteel,  30  Wis.  511.     ^ee  post,  §  624. 

'  Boyce  v.  Bayliffe,  1  Campl:).  58. 

*  In  Boyce  v.  Bayliffe,  supra,  it  is  said  to  have  been  held  that,  in  an  action 
for  false  imprisonment,  with  an  allegation  that  the  plaintiff  thereby  lost  a  lieu- 
tenancy, he  could  not  recover  for  the  loss,  because  it  was  remote.  The  same  is 
stated  in  1  Chitty's  Pleading,  440. 

The  obligor  in  a  void  bail  bond,  in  his  action  for  false  imprisonment,  is  not 
entitled  to  damages  for  remaining  in  the  county,  according  to  the  terms  of  the 
bond  (Fuller  v.  Bowker,  11  Mich,  204). 
Vol.  I.— 33 


354  FALSE  IMPRISONMENT.  §  396. 

manded  compensation,  and  the  defendant  told  him  he  might 
have  two  sovereigns  or  go  before  a  justice,  and  the  plaintiff 
consented  to  take  the  money,  but  said  at  the  same  time  that 
he  must  have  something  for  the  keep  of  his  horse,  and  the 
defendant  then  gave  him  half  a  crown,  and  directed  the  but- 
ler to  give  him  some  refreshment,  and  the  butler  did  so,  and 
the  plaintiff  went  away,  and  then  brought  an  action  against 
the  defendant,  and  recovered  100^. ;  it  was  held  that  the 
damao-es  were  excessive,  on  account  of  the  lim't  which  the 
plaintiff  himself  had  put  on  his  demand  in  the  first  instance. 
Tindal,  C.  J.,  said :  "  It  seems  to  me,  that  if  accord  and  satis- 
faction had  been  pleaded,  it  would  have  been  a  bar  to  the 
action.  A  verdict  of  100/.  is  far  beyond  the  merits,  as  we 
cannot  but  see  on  the  evidence  of  the  plaintiff  himself,  who 
has  set  the  measure  on  his  own  damages."  ^  * 

§  896.  When  two  persons  are  jointly  sued  for  false  im- 
prisonment, one  of  whom  has  acted  from  improper  motives, 
the  damages  ought  not  to  be  assessed  with  reference  to  the 
act  and  motives  of  the  most  guilt.y  or  the  most  innocent 
party.  The  true  criterion  of  damage  is  the  whole  injury 
which  the  plaintiff'  has  sustained  from  the  joint  act  of  tres- 
pass.^ A  single  act  of  trespass  committed  by  an  agent  can- 
not be  multiplied  by  the  number  of  principals  who  procured 
it  to  be  done ;  but  the  party  injured  is  only  entitled  to  com- 
pensation for  the  damages  actually  sustained.  Where,  there- 
fore, several  different  creditors  sued  out  as  many  different 
writs  separately  against  their  debtor,  without  any  intention 
to  act  in  concert,  or  knowledge  that  they  were  so  acting,  and 
the  same  oflicer  served  all  of  the  v^rits  at  the  same  time,  by 
arresting  the  debtor  and  committing  him  to  jail,  it  was  held 
that  the  creditors  were  joint  trespassers,  and  that  satisfaction 
received  by  the  debtor  from  one  of  them  would  bar  an  action 
by  him  against  the  others.^ 

'  Price  V.  Severne,  7  Bing.  316.    "  Clark  v.  Newsam,  1  Exch.  131 ;  16  L.  J.  297. 

'  Stone  agst.  Dickinson,  5  Allen,  29. 

*  Where  a  motion  for  a  new  trial,  on  account  of  excessive  damages,  in  an  ac- 
tion for  false  imprisonment,  is  overruled,  the  judgment  will  not  be  reversed,  un- 
less the  damages"  are  flagrantly  excessive  (Webber  v.  Kenny,  1  A.  K.  Marsh.  345). 


BOOK  III, 

TRESPASS  IN  RELATION  TO  PERSONAL  PROPERTY. 


CHAPTER  L 

TITLE    TO    PERSONAL    PROPERTY. 

1.  Property  in  wild  anirftals. 

2.  Property  in  goods  where  their  character  has  been  changed. 

3.  Property  in  goods  by  accession. 

4.  Confusion  or  intermingling  of  goods. 

5.  When  owner  of  goods  estopped  fvom  asserting  title  to  them. 

6.  When  property  in  goods  vests  in  trespasser. 

7.  Property  made  chattels  by  agreement. 

8.  General  rule  as  to  fixtures. 

1.  Property  in  loild  animals. 

§  397.  The  principles  of  law  governing  this  species  of 
property  are  so  familiar,  that  but  little  need  be  said  on  th^ 
subject  here.  We  may  however  be  permitted  to  observe 
that  animals  fercB  naturce,  when  reclaimed  by  the  art  and 
power  of  man,  are  the  subject  of  a  qualified  property ;  that 
if  they  return  to  their  natural  liberty  and  wildness  without 
the  animus  7^evertendi^  it  ceases ;  but  that  during  the  exist- 
ence of  the  qualified  property,  it  is  under  the  j)rotection  of 
the  law,  the  same  as  any  other  property,  and  every  invasion 
of  it,  redressed  in  the  same  manner.  The  Bishop  of  London 
having  granted  to  a  person  a  lease  of  land  for  a  term  of 
years,  excepting  the  trees,  and  the  herons  and  shovellers 
making  their  nests  in  the  trees,  the  tenant  during  the  lease, 
took  some  of  the  herons.  In  an  action  of  trespass  brought 
by  the  bishop  against  him,  it  was  held  that  the  plaintiff 
was  entitled  to  recover  the  value  of  the  herons,  he  having  a 
qualified  property  in  them,  by  reason  of  the  trees  in  which 
they  built.^ 

'  Bishop  of  London's  Case,  14  Hen.  8,  f.  1. 


35G  TITLE  TO   PERSONAL  PEOPEETY.  §  398. 

§  308.  Deer  in  a  park,  rabbits  in  a  warren,  or  fisli  in 
private  ponds  or  tanks,  are  it  is  said,  the  property  of  man 
no  longer  than  wliile  they  continue  in  his  keeping  or  posses- 
sion. Mauucaptiire  is  not  necessary  to  acquire,  much  less  to 
continue,  possession  of  this  property.  If  a  deer,  or  any 
wild  animal  reclaimed,  has  a  collar  or  other  mark  put  upon 
him,  and  goes  and  returns  at  pleasure,  it  is  not  lawful  for 
any  one  else  to  take  him  ;  though  if  he  be  long  absent  with- 
out returning,  it  is  otherwise.  In  all  these  cases  of  wild 
animals  reclaimed,  the  property  is  not  absolute,  but  de- 
feasible by  the  animals  resuming  their  ancient  wildness ;  as 
if  the  deer  escape  from  the  park,  or  the  iish  from  the  pond 
or  tank,  and  are  found  at  large  in  their  proper  element,  they 
become  ferae  naturce  again,  and  are  free  to  the  first  occupant 
that  may  seize  them.  But  while  they  continue  the  owner's 
qualified  property,  they  are  under  the  protection  of  the  law, 
as  much  so,  as  if  they  were  absolutely  and  indefeasibly  his ; 
and  an  action  will  lie  for  any  injury  committed.  It  is  clear 
from  the  principles  above  mentioned,  that  the  right  to 
appropriate  property  of  the  descrij^tion  in  question,  does 
not  depend  exclusively  upon  the  place  where  they  are 
found,  but  upon  the  fact  that  they  are  ferce  natiiroe  un- 
reclaimed. For  though  the  deer  should  be  found  browsing 
in  his  own  forest,  and  the  pigeon  flying  in  the  air,  or  any 
of  the  class  reclaimable  at  large,  if  they  have  been  in  fact 
domesticated,  and  possess  the  animus  revertendi,  they  are 
not  common  property,  and  the  occupant  who  takes  them 
gets  no  title ;  and  if  he  takes  them  knowing  their  condition, 
he  becomes  a  trespasser.^  If  a  person  interferes  with  an- 
other who  is  trying  to  catch  fish,  the  latter  before  he  has  got 
the  fish  into  his  power  or  under  his  dominion  and  control, 
has  no  right  of  property  in  or  title  to  the  fish,  although, 
excepting  for  such  interference,  he  would  have  secured  them. 
Where  the  plaintiff,  while  fishing,  had  nearly  surrounded 
with  a  net,  a  multitude  of  fish,  and  would  have  taken  all  of 


'  Bro.  Abr.  Property,   PL  4 ;    Hadesden  v.  Grvssel,  Cro.  Jac.   195 ;  Rigg  v. 
Lonsdale,  1  IJ.  &  N.  023. 


§§  399,  400.  PROPERTY    IN   WILD  ANIMALS.  357 

them,  but  for  the  defendant,  who  came  with  boats  and  men, 
and  drove  the  fish  into  his  own  nets  and  captured  them,  it  was 
held  that  the  plaintiff  had  no  right  to  the  fish,  as  he  had 
never  had  them  under  his  dominion  and  control,  but  that  he 
ouo-ht  to  have  brouo^ht  an  action  ao-ainst  the  defendant  for 
interfering  w^ith  his  nets,  and  unjustifiably  preventing  the 
plaintiff  from  exercising  his  occupation,  and  calling  of  a 
fisherman  and  catching  the  fish.^  * 

§  399.  It  has  been  said,  that  if  A.  start  game  on  the 
grounds  of  B.  and  kill  it  there,  it  belongs  to  B. ;  the  property- 
arising  ratione  soli  ;  but  that  if  he  pursue  it  on  to  the  land 
of  C.  and  there  kill  it,  it  belongs  to  the  hunter ;  though  he 
will  be  liable  to  an  action  of  trespass  at  the  suit  as  well  of 
B.  as  of  C.  for  hunting  on  their  grounds.^ 

§  400.  Bees  are  ferce  naturce,  but,  when  hived  and  re- 
claimed, a  person  may  have  a  qualified  proj)erty  in  them  by 
the  law  of  nature,  as  well  as  the  civil  law.  Occupation,  that 
is,  hiving  or  enclosing  them,  gives  property  in  them.  They 
are  now  a  common  species  of  property,  and  an  article  of 
trade ;  and  the  wildness  of  their  nature,  by  experience  and 
practice,  has  become  essentially  subjected  to  the  art  and 
power  of  man.  An  unreclaimed  swarm,  like  all  other  wild 
animals,  belongs  to  the  first  occupant ;  in  other  words,  to  the 
person  who  first  hives  them.  But  if  a  swarm  fly  from  the 
hive  of  another,  his  qualified  property  continues  so  long  as 


•  Young  V.  Hitchens,  6  Q.  B.  GOG. 

■  BI.  Com.  V.  2,  p.  419:  Sutton  v.  Moody,  1  Ld.  Raym.  250;  2  Salk.  55Q; 
Churchward  v.  Studdy,  14  East,  249. 

=•=  In  Littledale  v.  Scaith,  1  Taunt.  243,  n.  a.,  which  was  an  action  of  trover 
for  a  whale  which  had  been  struck  by  a  harpooner  of  the  plaintiff's  ship,  it  was 
agreed  that  the  law,  both  by  the  custom  of  Greenland,  and  as  settled  by  former 
determinations  at  Guildhall,  London,  was  as  follows:  while  the  harpoon  remains 
in  the  fish,  and  tiie  line  continues  attached  to  it,  and  also  continues  in  the 
power  or  management  of  the  striker,  the  whale  is  a  fast  fish;  and  though 
during  that  time,  struck  by  a  harpooner  of  another  ship,  and  though  she  after- 
ward breaks  from  tlie  first  harpoon,  but  continues  fast  to  the  second,  the  second 
harpoon  is  caUed  a  friendly  harpoon,  and  the  fish  is  the  property  of  the  first 
striker.  But  if  the  first  harpoon  or  line  breaks,  or  the  line  attached  to  the 
liarpoon  is  not  in  the  power  of  tlie  striker,  the  fish  is  a  loose  fish,  and  will 
become  the  i^roperty  of  any  other  person  who  strikes  and  obtains  it. 


358  TITLE  TO  PERS01<rAL   PROPERTY.  §  401. 

lie  can  keep  them  in  sigbt  and  has  power  to  pursue  them.^  * 
A  man's  finding  bees  in  a  tree  standing  upon  another  man's 
land,  gives  him  no  right  either  to  the  tree  or  the  bees.^ 
Where  bees,  which  have  been  reclaimed,  occupy  a  tree  on 
the  land  of  another,  and  the  owner  of  the  land  cuts  the  tree 
down,  destroys  the  bees,  and  takes  the  honey,  an  action  of 
trespass  therefor  may  be  maintained  against  him  by  the 
owner  of  the  bees,  although  the  latter  cannot  enter  upon  the 
land  to  retake  the  bees  without  subjecting  himself  to  an 
action  of  trespass.^ 

2.  Property  in  goods  where  their  cJtaracter  has  heen  changed. 

§  401.  Where  a  person  takes  away  an  article  belonging 
to  another,  without  authority,  and  alters  or  improves  it,  he 
cannot  lawfully  detain  it  from  the  owner  until  his  alterations 
and  improvements  have  been  paid  for.  If  my  carriage,  with- 
out any  authority  from  me,  is  sent  to  a  coach-maker  to  be 
repaired  or  painted,  1  have  a  right  to  the  possession  of  it, 
without  paying  for  the  repairs  or  painting.^  Materials  de- 
livered to  a  person  for  the  purpose  of  being  manufactured, 
still  continue  the  property  of  the  original  owner,  although 
their  nature  and  character  be  essentially  altered  by  tlie 
process,  and  their  value  largely  increased.  In  such  cases 
there  is  no  contract  of  sale  and  no  act  done  which  divests  the 
property  of  the  original  owner.  It  is  merely  a  contract  be- 
tween a  principal  and  an  agent,  or  employer  and  employee, 
the  former  having  the  title  to  the  property,  and  the  latter  a 
claim  to  compensation  foi'  his  labor.  The  mode  in  which  this 
compensation  is  j^aid,  whether  by  a  right  to  sell  on  the  part 


'  GofifT.  Kilts,  15  Wend.  550. 

^  Menils  v.  Goodwin,  1  Root,  209;  Gillet  v.  Mason,  7  Johns.  16. 

'  Gofl'v.  Kilts,  supra.  *  Hiscox  v.  Greenwood,  4  Esp.  174. 

*  Blackstone  (2  Com.  293)  inclines  to  the  opinion  that,  mider  the  Charter  of 
the  Forest,  allowing  every  free  man  to  be  entitled  to  the  honey  found  within  his 
woods,  a  qualified  property  may  be  liad  in  bees,  in  consideration  of  the  soil 
whereon  they  are  found,  or  an  ownership  ratione  soli.  According  to  the  civil 
law  (Just.  Inst.  Lib.  2,  Tir.  1,  s.  14),  bees  which  swarm  upon  a  tree  are  not 
private  property  until  actually  hived,  and  he  who  lirst  encloses  them  in  a  hive 
becomes  their  proprietor. 


§  402.  PROPERTY    IN  ALTERED    GOODS.  359 

of  the  agent  and  to  deduct  it  from  the  proceeds,  or  by  a 
direct  payment  of  it  by  the  principal,  is  immaterial.  In 
either  case  the  title  to  the  property  remains  unchanged.^ 

§  402.  By  the  civil  law,  personal  property  must  have 
been  taken  away  in  ignorance  of  its  being  the  property  of 
another,  and  be  changed  into  a  different  species,  before  the 
owner  could  lose  his  title.  A  wilful  wrong-doer  acquired  no 
property  in  the  goods,  either  by  the  wrongful  taking,  or  by 
any  change  wrought  in  them  by  his  labor  or  skill.  In  the 
digest  of  Justinian  ^  it  is  said  :  "  If  any  one  shall  make  wine 
with  my  grapes,  oil  with  my  olives,  or  garments  witli  my 
wool,  knowing  they  are  not  his  own,  he  shall  be  compelled 
by  action  to  produce  the  said  wine,  oil,  or  garments."  So,  in 
Vinnius'  Institutes : '^  "  He  who  knows  the  material  is  an- 
other's, ought  to  be  considered  in  the  same  light  as  if  he  had 
made  the  species  in  the  name  of  the  owner,  to  whom  also  he 
is  to  be  understood  to  have  given  his  labor."  The  same 
principle  is  stated  by  Puffendorf,  in  his  Law  of  Nature  and 
of  Nations,  and  in  Wood's  Institutes  of  the  Civil  Law.* 


'  Eaton  V.  Lvnde,  15  Mass.  242;  Stevens  v.  Briggs,  5  Pick.  177;  Mitcliell  v. 
Stetson,  7  Cusli!!  435. 

=  Lib.  10,  Tit.  4,  Leg.  13,  §  3.  '  Tit.  1,  PI.  25. 

*  In  PutTenciorf  s  Law  of  Nature  and  of  Nations,  Booli  4,  cli.  7,  §  10,  it  is 
laid  down  tliat,  "  In  all  cases  it  is  to  be  inquired  whether  the  person  who  be- 
stows a  shape  on  another's  matter,  doth  it  with  au  honest  or  with  a  dishonest 
design.  For  he  who  acts  thus,  out  of  a  knavish  principle,  can  by  no  means 
pretend  that  the  tiling  belongs  to  him,  rather  than  to  the  owner  of  the  matter — 
thou<;h  all  the  former  reasons  should  concur — that  is,  though  the  figure  should 
be  the  most  valuable;  though  the  matter  should,  as  it  were,  be  lost  and  swal- 
lowed up  in  the  work;  and  though  he  should  be  in  very  great  want  of  what  he 
had  tiius  compacted.  For  the  greater  part  of  the  two  doth  not  draw  to  itself 
the  less,  Ijareiy  by  its  own  virtue  or  on  its  own  account;  but  there  is  required 
farther  some  probable  ground  and  plea  in  the  owner  of  that  part  which  exceeds, 
on  which  he  may  build  his  claim.  Hence,  if  a  man.  out  of  wilful  and  designed 
fraud,  puts  a  new  sliajie  on  my  matter,  that  he  may.  by  this  means,  rolj  me  of  it, 
he  neitlier  gains  any  right  over  the  matter  by  this  act,  nor  can  demand  of  me  a 
reward  for  his  labor,  any  more  tlian  a  thief  who  digs  through  ray  walls  can 
claim  to  be  paid  for  his  great  trouble  in  making  a  new  door  into  my  house;  or 
than  one  that  breaks  an  impostluunc,  otherwise  incurable,  with  a  blow  that  he 
designed  for  my  death;  or  than  Autolycus  could  have  asked  a  price  for  painting 
the  horses  which  he  first  stole.  And  all  this  doth  not  proceed  from  any  positive 
constitutions,  but  from  the  very  dictate  and  ap])ointment  of  natural  reason, 
thougii  nature  dotli  not  determine  any  particular  penalty  in  the  case.  For  to 
have  exercised  such  a  villainy  gratis  is  not  properly  a  punishment;  and,  on  the 


360  TITLE  TO   PERSONAL  PROPERTY.  §  403. 

§  403.  The  common  law  rule  seems  to  have  been  borrowed 
from  the  Roman  law  at  an  early  day,  at  a  period  when  the 
common  law  furnished  no  rule  whatever  in  a  case  of  this 
kind.  Bracton,  in  his  treatise,  compiled  in  the  regn  of  Henry 
III,  adopted  a  portion  of  Justinian's  Institutes  on  this  sub- 
ject, without  noticing  the  distinction  between  an  innocent 
taker  and  a  wilful  wrong-doer.  And  Blackstone,^  in  stating 
what  the  Roman  law  was,  follows  Bracton.  *     In  England, 

other  hand,  it  is  most  just  and  reasonable  that  I  should  not  be  obliged  to  pay  a 
man  wages  for  endeavoring  to  do  me  a  mischief." 

Wood  (lust,  of  Civil  Law,  p.  92)  states  the  doctrine  on  the  subject  thus  : 
'*  He  that  made  the  new  species  shall  be  master  of  the  whole  if  it  cannot  be  re- 
duced to  its  first  state  and  condition ;  as  when  one  shall  press  wine  from  your 
grapes,  or  build  a  ship  from  your  timljer,  you  cannot  claim  the  wine  or  the  ship. 
But  this  determination  only  takes  place  in  favor  of  the  workman,  where  the 
work  was  designed  for  his  own  use,  and  where  he  erroneously  and  by  mistake 
thought  the  matter  was  his  own.  For  if  it  was  intended  for  the  use  of  another, 
it  is  his  upon  the  same  terms  for  whose  use  it  was  making.  And  if  it  is 
known  that  the  grapes  and  timl)er  are  another's,  and  yet  thereof  he  proceeds  to 
make  his  wine  or  ship,  he  shall  lose  his  labor  and  workmanship.  The  whole 
shall  accrue  to  the  owner,  and  an  action  may  be  maintriued  against  him." 

In  Bown's  Civil  and  Admiralty  Law,  p.  240,  the  civil  law  is  stated  to  be  that 
the  original  owner  of  anything  improved  by  the  act  of  another,  retained  his 
ownership  in  the  thing  so  improved,  unless  it  was  changed  into  a  different 
species;  as  if  his  grapes  were  made  into  wine,  the  wine  belonged  to  the 
maker,  who  was  only  obliged  to  pay  the  owner  for  the  value  of  his  grapes.  The 
species,  however,  must  be  incapable  of  being  restored  to  its  ancient  form ;  and 
the  materials  must  have  been  taken  in  ignorance  of  their  being  the  property  of 
another. 

'  2  BI.  Com.  404,  405. 

*  The  authorities  to  which  Blackstone  refers  in  support  of  his  text  are  three 
only.  The  first  in  Brookes'  AL-ridgment,  Tit.  Property,  23,  is  the  case  from  the 
Year  Book,  5  H.  7,  fol.  15,  in  which  the  owner  of  leatlier  brought  trespass  for 
taking  slippers  and  boots,  and  the  defendant  pleaded  that  he  was  the  owner  of 
the  leather,  and  bailed  it  to  J.  S.,who  gave  it  to  the  plaintiff,  who  manufactured 
it  into  slippers  and  boots,  and  the  defendant  took  them,  as  he  lawfully  might. 
The  plea  was  held  good,  and  the  title  of  the  owner  of  the  leather  unchanged. 
The  second  reference  is  to  a  case  in  Moore's  Reports,  p.  20,  in  which  the  action 
was  trespass  for  taking  timber,  and  the  defendant  justified  on  the  ground  that 
A.  entered  on  his  land  and  cut  down  trees  and  made  timber  thereof,  and  carried 
it  to  the  place  where  the  trespass  was  alleged  to  have  been  committed,  and  after- 
ward gave  it  to  the  plaintiff,  and  that  the  defendant  therefore  took  the  timber, 
as  he  lawfully  might.  In  these  cases,  the  chattels  had  passed  from  the  hands  of 
the  original  trespasser  into  the  hands  of  a  third  person.  In  ])oth,  it  was  held 
that  the  title  of  the  original  owner  was  unchanged,  and  that  he  had  a  right  to 
the  property  in  its  improved  state,  against  the  third  person  in  possession.  They 
are  in  conformity  with  the  rule  of  the  civil  law.  The  third  example  which  is 
from  Popham's  Reports,  p.  38,  was  a  case  of  confusion  of  goods.  The  plaintiff 
voluntarily  mixed  his  own  hay  with  the  hay  of  the  defendant,  who  carried  the 
whole  away,  for  which  he  was  sued  in  trespass,  and  it  was  adjudged  tliat  tlie 
whole  should  go  to  the  defendant.  Blackstone  refers  to  this  case  in  support  of 
his  text  that  "our  law  to  guard  against  fraud  gives  the  entire  property,  without 
any  account,  to  him  whose  original  dominion  is  invaded,  and  endeavored  to  be 


§  403.  PROPERTY  IN   ALTERED   GOODS.  3GI 

the  decisions  on  tlie  general  subject  commenced  as  early  as 
the  Year  Book,  5  H.  7,  folio  15 ;  and  it  was  held,  after  argu- 
ment on  demurrer,  that  whatever  alteration  of  form  any 
property  had  undergone,  the  owner  might  seize  it  in  its  new 
shape  if  he  could  prove  the  identity  of  the  original  materials.  ^' 
According  to  the  rule  thus  established,  if  the  wrong-doer  en- 
hances the  value  of  the  chattel  by  labor  and  skill  bestowed 
upon  it— as  by  sawing  logs  into  boards,  splitting  timber  into 
rails,  making  leather  into  shoes,  or  iron  into  bars,  or  into  a 
tool — the  manufactured  article  still  belongs  to  the  owner  of 
the  original  material,  and  he  may  retake  it,  or  recover  its  im- 
proved value  in  an  action  for  damages,  and  the  rule  holds 
good  against  an  innocent  purchaser  from^  the  wrong-doer, 
although  the  value  may  have  been  increased  by  the  labor  of 
the  purchaser.  If,  however,  a  chattel  wrongfully  taken  after- 
ward goes  into  the  hands  of  an  innocent  holder  who,  believing 
himself  to  be  the  owner,  converts  the'  chattel  into  a  thing 
of  a  different  species,  so  that  its  identity  is  destroyed,  the 
original  owner  cannot  reclaim  it,  but  is  put  to  his  action  for 


rendered  uncertain  without  his  own  consent."  The  civil  law  in  such  a  case 
would  have  required  him  who  retained  the  whole  of  the  mingled  goods  to  ac- 
count to  the  other  for  his  share  (Just.  Inst.  Lib.  2,  tit.  1,  §  38) ;  and  the  common 
law,  in  this  respect,  seems  to  be  more  rigorous  than  the  civil  law. 

*  "-There  is  great  confusion  in  the  books  upon  the  question  what  constitutes 
change  of  identity.  In  one  case  (5  Hen.  7,  fol.  15),  it  is  said  that  the  owner 
may  reclaim  the  goods  so  long  as  they  may  be  known,  or  in  other  words,  ascer- 
tained by  inspection.  But  this,  in  many  cases,  is  by  no  means  the  best  evidence 
of  identity,  and  the  examples  put  by  way  of  illustration  serve  rather  to  disprove 
than  to  establish  the  rule.  The  court  say  that  if  grain  be  made  into  malt  it  can- 
not be  reclaimed  by  the  owner,  because  it  cauuot  be  known.  But  if  cloth  be 
made  into  a  coat,  a  tree  into  squared  timber,  or  iron  into  a  tool,  it  may.  Now 
as  to  the  cases  of  tlie  coat  and  the  timber,  they  may  or  may  not  be  capable  of 
identification  by  the  senses  merely,  and  the  rule  is  entirely  uncertain  in  its  ap- 
plication; and  as  to  the  inm  tool,  it  certainly  cannot  be  identified  as  made  of  the 
original  material,  without  other  evidencp.  This  illustration,  therefore,  contra- 
dicts the  rule.  In  another  case  (Moore's  R.  20),  trees  were  made  into  timber, 
and  it  was  adjudged  that  the  owuer  of  the  trees  might  reclaim  thettimber,  'be- 
cause the  greater  part  of  the  substance  remained.'  But  if  this  were  the  true 
criterion,  it  would  embrace  the  cases  of  wheat  made  into  bread,  milk  into 
cheese,  grain  into  malt,  and  others,  which  are  put  in  the  books  as  examples  of  a 
change  of  identity.  Other  writers  say  that  when  tlie  thing  is  so  changed  that  it 
cannot  be  reduced  from  its  new  forni  to  its  former  state  its  identity  is  gone. 
But  this  would  include  many  cases  in  which  it  has  been  said  by  the  courts  that 
the  identity  is  not  gone,  as  the  case  of  leather  made  into  a  garment,  logs  into 
timber  or  boards,  cloth  into  a  coat,"  &c.  (Ruggks,  J.,  in  Siltbury  v.  McCoon,  3 
N.  Y.  R.  379). 


362  TITLE  TO  PERSONAL  PROPERTY.  §  404. 

damages  as  for  a  thing  consumed,  and  may  recover  the  value 
of  the  chattel  as  it  was  when  the  conversion  or  consumption 
took  place/  The  New  York  Supreme  Court  decided  that 
the  rule  of  the  civil  law,  that  where  goods  are  taken  by  a  wil- 
ful trespass  the  title  is  not  changed,  however  great  may  be 
.the  alteration  of  the  original  materials,  had  not  been  adopted 
in  tliat  State.^  But  the  court  of  last  resort,  in  reviewino;  the 
judgment  of  the  Supreme  Court,  held  that  if  the  plaintiffs 
below,  in  converting  corn  into  whisky,  knew  that  it  belonged 
to  another,  and  that  they  were  thus  using  it  in  violation  of 
his  right,  they  acquired  no  title  to  the  manufactured  article, 
which,  althouo-h  chano;ed  from  the  orio^nal  material  into  an- 
other  of  different  nature,  yet  being  the  actual  product  of  the 
corn,  still  belonged  to  the  original  owner.  * 

3.  Property  in  goods  hy  accession. 

§  404.  It  is  a  general  rule  of  law  that  the  owner  of  prop- 
erty, whether  it  be  movable  or  immovable,  has  the  rio;ht  to 
that  which  is  united  to  it  by  accession  or  adjunction.  Where, 
for  instance,  the  agent  of  the  owner  of  a  mill  put  his  own 
mill  stones  and  mill  irons  into  the  mill,  it  was  held  that  they 
thereby  became  a  part  of  the  freehold,  and  that  the  agent 
had  no  right  to  sever  them,  and  that  the  agent's  creditors 
could  not  take  them  for  his  debts,  although  the  mill  had 
been  destroyed,  and  they  alone  were  left.^  f 


'  See  2  Kent's  Com.  3G3. 

=  Silsbury  v.  McCoon,  4  Denio,  332 ;  s.  c.  6  Hill,  425 ;  3  X.  Y.  379. 
^  Goddard  v.  Bolster,  6  Maine,  427.     And  see  :\Iitchell  v.    Stetson,  7  Cush. 
435. 

*  The  rule  referred  to  in  the  text  has  been  adopted  in  Pennsylvania  (Snyder 
V.  Vaux,  2  Raw'le.  423);  and  in  Maine  and  Massachusetts  it  has  been  applied  to 
the  v.ilful  inlennisture  of  goods  (Wingate  v.  Smith,  7  Shepl.  287 ;  Rvder  v.Hatha- 
Avay,  21  Pick.  298;  Wiilard  v.  Rice,  11  Mete.  493).  Where  a  trespasser  cut  down 
tirai)er  and  converted  it  into  coal  on  the  owner's  land,  and  in  action  for  tiie  tres- 
pass the  value  of  the  timber,  and  a  counter  demand  of  the  defendant  for  the  coal, 
were  submitted  to  the  jury,  who  found  a  verdict  for  the  plaintift',  it  was  held  that 
as  the  coal  remained  in  the  possession  of  the  owner  of  tlie  timljer,  the  defendant 
acquired  no  propcrtv  in  it  (Curtis  v.  Groat.  6  Johns.  168;  citing  Betts  v.  Lee,  5 
Johns.  348.     See  6  Hill,  427 ;  4  Denio,  334). 

t  Goddard  V.  Bolster,  s?</>rffl..  was  an  action  of  trespass  for  entering  on  the 
plaintiff's  land  and  carrying  otf  his  mill  stones  and  mill  irons.     It  was  proved 


§  405.  CONFUSION   OR  INTERMINGLING   OF   GOODS.  303 

4.   Confusion  or  intermingling  of  goods. 

§  405.  If  one  man  so  confounds  the  goods  of  another 
with  his  own  that  they  cannot  be  distinguished,  he  must 
himself  bear  all  the  inconvenience  of  the  confusion,  and  it  is 
for  him  to  distinguish  his  own  property  or  lose  it,^  ''  If  a 
goldsmith  be  melting  gold  in  a  pot,  and  as  he  is  melting  it  I 
will  cast  gold  of  mine  into  the  pot,  which  is  melted  alto- 
gether with  the  other  gold,  I  have  no  remedy  for  my  gold, 
but  have  lost  it ;  and  if  a  man  take  my  garment  and  em- 
broider it  with  silk  or  gold,  or  the  like,  I  may  take  back  my 
garment;  but  if  I  take  the  silk  from  you,  and  with  this  face 
or  embroider  my  garment,  you  shall  not  take  my  garment 
for  your  silk  whicli  is  in  it,  but  are  put  to  your  action  for  my 
taking  the  silk  from  you."  ^  Where  the  plaintiff,  at  play,  thrust 
his  money  into  the  defendant's  heap,  and  so  intermingled  the 
coins  that  it  became  impossible  to  separate  them,  it  was  held 
that  the  whole  heap  belonged  to  the  defendant.^  And  where 
a  person  bought  mortgaged  goods  in  order  to  defraud  the 
mortgagee,  and  then  mingled  them  with  his  own  goods  so 
that  the  two  could  not  be  distinguished,  and  refused  to 
separate  them,  it  ^vas  held  that  the  mortgagee  might  lawfully 
take  some  of  them  with  his  own.*     In  Michigan,  where  a 

that  the  plaintiff  bought  the  premises  some  twenty  years  previous  as  a  home  for 
his  brother  Robert,  and  that  the  latter  alw;iys  occupied  and  used  the  same  as 
thouo'h  they  were  his  own  ;  that  when  Robert  went  tliere  to  live  there  was  a  grist 
mill  on  the  premises,  which,  being  subsequeutly  burnt,  it  was  rebuilt  by  Robert, 
and  he  put  into  it  his  own  mill  stones  and  mill  irons;  that  Robert  ojcajjiad  this 
second  mill  as  his  own  for  several  years,  and  until  it  was  destriyed  by  a  flood; 
that  he  then  took  the  mill  stones  and  irons  out  of  the  river,  sold  some  of  them 
and  left  the  balance  on  the  premises  by  the  side  of  the  road,  where  they  re- 
mained until  they  were  taken  on  an  execution  against  Robert  by  the  defendants, 
wdio  were  his  judgment  creditors.  The  judge  charged  tlie  jury  tliat  the  mill, 
when  rebuilt,  belonged  to  the  plaintiff,  who  would  be  holden  to  Robert  for  the 
value  of  any  materials  or  labor  furnished  by  him,  and  that  the  parts  after  the 
mill  was  destroyed  continued  to  be  the  plaintiff's  property.  A  verdict  having 
been  found  for  the  plaintiti",  the  Supreme  Court  directed  jutlgment  to  be  entered 
on  it. 

One  who.  without  license,  enters  upon  government  land,  cuts  down  trees,  and 
converts  them  into  wood,  acquires  no  title  to  t!ie  wood  by  the  doctrine  of  acces- 
sion (Brock  V.  Smith,  14  Ark.  4ol). 

'  2  Kent's  Com.  :565 ;  Story  on  Bailm.  §  40 ;  Hart  v.  Ten  Eyck,  2  Johns.  Ch. 
R,  62;  Luptcm  v.  White,  15  Ves.  433. 

^  Anon.  Popham,  38. 

'  Ward  V.  Eyre,  2  Bulstr.  323.  *  FuLcr  v.  Paige,  26  111.  358. 


3G4  TITLE    TO   PERSONAL   PROPERTY.  §  406. 

pyrsoii  wrongfully  mingled  liis  o\vn  saw  logs  with  those  of 
another,  it  was  held  that  the  latter  mis^ht  seize  all  of  tHe  loo-s 
if  he  could  do  so  without  violence,  and  that  he  was  not  liable 
for  the  accidental  destruction  of  the  property  while  thus  in 
his  possession.^  *  In  Maine,  where  a  person  found  his  tim- 
ber, which  had  been  wrongfully  taken  from  his  land ,  min- 
gled with  other  timber  so  that  it  could  not  be  distinguished, 
it  was  held  that  he  could  lawfully  take  possession  of  the 
whole,  even  if  afterward  obliged  to  account  to  the  true 
owner  for  a  portion  of  it.^  f 

§  406.  If  the  intermingling  of  goods  be  wilful,  and  with- 
out the  consent  of  the  other,  and  the  articles  are  of  such  a 
nature  that  they  cannot  be  distinguished  and  separated,  the 
civil  law  gives  the  whole  to  the  one  not  consenting  to  the 
mixture,  but  allows  a  satisfaction  to  the  other.  But  the 
common  law  gives  the  whole  to  the  one  not  consenting,  with- 
out compensation  to  the  other.  This,  however,  is  to  be  car- 
ried no  further  than  necessity  requires ;  and  it  seems  to  be 
understood  that  if  the  articles  so  mino-led  are  of  the  same 


'  Stephenson  v.  Little,  10  Mich.  433.  "^  Bryant  v.  Ware,  30  Maine,  295. 

*  In  Stephenson  v.  Little,  supra,  Campbell,  J.,  dissenting,  held  that  the 
■wrong-doer  had  a  right  to  his  share  when  the  logs  were  of  a  uniform  value. 

t  In  Loomis  v.  Green,  7  Maine,  386,  which  was  an  action  for  certain  pine 
logs,  the  defendant  claimed  the  logs  under  a  bill  of  sale  of  them  made  to  him  by 
the  treasurer  of  Dartmouth  College.  It  appeared  that  Loomis  cut  certain  logs, 
without  authority,  on  the  college  lands,  put  upon  them  his  private  mark,  and 
deposited  them  in  the  Dead  Diamond  river,  a  tributary  stream  of  the  Androscog- 
gin; and  that  he,  at  the  same  time,  owned  a  small  quantity  of  logs  which  he 
acquired  l>y  purchase,  on  the  Magalloway  river,  also  a  tributary  stream  entering 
into  the  Androscoggin,  on  which  he  also  put  the  same  mark;  and  that  botli 
parcels  were  floated  down  said  last-mentioned  river  for  upwards  of  one  hundred 
miles  by  tlie  current,  without  any  particular  superintendence.  The  plaintiff"  con- 
tended that  the  burden  of  proof  was  on  the  defendant  to  show  that  the  logs  he 
took  were  not  those  purchased  on  the  JMagalloway  by  the  plaintiflT,  but  that  they 
were  those  cut  on  the  college  lands  and  floated  down  the  Dead  Diamond  river. 
But  it  was  held  otherwise.  As  the  plaintiff  had  marked  the  logs  cut  on  the  col- 
lege lands,  which  were  the  property  of  the  trustees,  with  the  same  marks  as 
those  which  he  owned  on  the  Magalloway,  and  turned  the  whole  into  the  An- 
droscoggin, so  that  they  might  go  down  promiscuously,  he  had  effected  what 
the  law  terms  a  confusion  of  goods;  and  this  having  been  done  wilfully,  and 
without  the  mutual  consent  of  the  owners  of  both  parcels,  it  is  for  the  partj' 
creating  the  confusion  to  distinguish  his  own  property  satisfactorily,  or  lose  it. 

The  placing  of  crockery,  china,  or  other  articles  resembling  each  other  on 
the  same  shelf,  is  not  a  confusion  of  them  within  the  meaning  of  the  law  (Treat 
V.  Barber,  7  Conn.  274). 


§  408.  CONFUSION   OR  INTERMINGLING   OF   GOODS.  305 

kind  and  of  equal  value,  the  injured  party   may  take  liis 
given  quantity,  and  not  the  wliole.^ 

§  407.  When  tlie  confusion  or  commixture  of  goods  is 
made  with  the  consent  of  the  owners,  or  by  accident,  or  by 
the  inadvertence  or  negligence  of  one  of  the  owners,  and  the 
goods  are  of  such  a  nature  that  they  can  be  identified  and 
separated — as  if  A.  mixes  some  of  B.'s  cattle,  sheep,  horses, 
wood,  or  furniture,  with  his  own,  erroneously  supposing  that 
they  belong  to  him — the  property  of  each  remains  as  before  ; 
and  when,  although  the  identity  remains,  they  cannot  be 
distinguished,  each  owner  is  entitled  to  his  share.^  *  Where 
the  wood  of  two  persons  became  intermingled  and  indistin- 
guishable, without  the  fault  of  either,  it  was  held  that  they 
became  tenants  in  common  of  the  wood,  each  being  entitled 
in  the  joint  property  to  the  number  of  cords  of  which  he  was 
the  owner  previous  to  the  confusion  of  the  wood.^ 

§  408.  If  goods  while  mingled  with  others,  be  sold  by 
number,  weight,  or  measure,  the  sale  is  incomplete,  and  the 
title  continues  wdth  the  seller  until  the  bargained  property 
be  separated  and  identified.  The  reason  is,  that  the  sale 
cannot  apply  to  any  article  until  it  is  clearly  designated,  and 
its  identity  thus  ascertained.  But  if  the  goods  sold  are 
clearly   identified,   then,  although   it  may  be   necessary  to 


'  3  Blk.  Com.  405;  Browne's  Civil  Law,  243;  Willard  v.  Rice,  11  Mete.  493; 
Beach  v.  Scliraultz,  20  111.  185;  Gilman  v.  Sanborn,  3G  N.  Hanip.  311;  Ryder  v, 
Hathaway,  21  Pick.  298;  Seavev  v.  Dearborn,  19  N.  Hamp.  351';  Barron  v.  Cob- 
leigh,  11  lb.  557;  Hyde  v.  Cookson,  21  Barb.  92;  Silsbiirv  v.  McCoou,  3  Comst. 
379. 

=  Story  on  Bailment,  §  40 ;  Piatt  v.  Bryant,  20  Vt.  333 ;  Moore  v.  Bowman, 
47  N.  Hamp.  494. 

'  Moore  v.  The  Erie  R.  R.  Co.  7  Lans.  39. 

*  A.,  a  machinist,  was  allowed  to  use  with  his  own  tools  and  machinery  a 
quantity  belonging  to  B.,  in  consequence  of  which  those  of  B.  became  intermin- 
gled with  his  own,  so  tliat  it  was  difficult  to  distinguish  the  one  from  the  other. 
B.  sold  to  C.  such  of  the  articles  as  belonged  to  him,  without  however  specify- 
ing or  enumerating  them ;  but  A.  would  not  allow  C.  to  take  them  away.  There- 
upon B.  sent  workmen  to  remove  the  property,  but  did  not  point  it  out  to  them 
or  state  what  articles  it  comprised.  In  an  action  of  trespass  by  A.  against  B.,  it 
was  held  that  B.  was  not  lial^le  for  the  act  of  the  workmen  in  removing  acci- 
dentally with  the  articles  sold  other  similar  ones  belonging  to  A.  (Rose  v.  Gal- 
lup, 33  Conn.  338). 


360  TITLE    TO   PERSONAL  PROPERTY.  §  409. 

number,  weigh,  or  measure  tliem,  in  onler  to  ascertain  what 
would  l>e  the  piice  of  the  whole  at  a  rate  agreed  upon  be- 
tween the  parties,  the  title  will  pass.  If  a  flock  of  sheep  is 
sold  at  so  much  the  head,  and  it  is  agreed  that  they  shall  be 
counted  after  the  sale  in  order  to  determine  the  entire  price 
of  the  whole,  the  sale  is  valid  and  complete.  But  if  a  given 
number  out  of  the  whole  are  sold,  no  title  is  acquired  by  the 
purchaser  until  they  are  separated,  and  their  identity  thus 
ascertained  and  determined.  The  distinction  in  all  these 
cases  does  not  depend  so  much  upon  what  is  to  be  done  as 
upon  the  object  to  be  attained.  If  that  is  specification,  the 
property  is  not  changed.  If  it  is  merely  to  ascertain  the 
total  value  at  designated  rates,  the  change  of  title  is  effected.^ 

5.    When  oioner  of  goods  estopped  from  asserting  title  to  them. 

§  409.  When  any  one  by  his  conduct  causes  the  belief, 
or  by  his  silence  admits  another  to  be  the  owner  of  property, 
so  that  a  third  person,  in  acting  upon  the  representation,  as- 
sumes responsibility,  or  parts  with  value,  he  cannot  after- 
ward aver  his  own  title  to  the  injury  of  such  person.^  Where 
an  insolvent  debtor  falsely  and  fraudulently  pretended  that 
the  goods  belonging  to  him  and  in  his  possession  were  the 
property  of  one  Madden,  the  lease  of  the  store  being  in  the 
name  of  Madden,  and  his  name  upon  the  awning,  it  was  held 
that  such  debtor  could  not  enforce  his  claim  to  the  goods 
against  a  creditor  of  Madden  who  had  levied  upon  them.^  ^ 
But  the  rule  that  of  two  innocent  persons,  he  who  has  parted 
with  tlie  possession  of  his  property  must  yield  to  a  bona  fide 

»  Crofoot  V.  Bennett,  2  N.  Y.  358. 

■  Thompson  w  Blanchard,  4  Com.  303;  Deezell  v.  Odell,  3  Hill,  215;  Hib- 
bard  v.  Stewart,  1  Hilton,  207. 

'  Kigney  v.  Smith,  39  Barb.  383. 

*  Holt  V.  .Johnson.  14  Johns.  425,  was  an  action  of  trespass  brought  by  John- 
son in  a  justice's  court  against  Holt  for  taking  a  horse  from  the  plaintiff.  The 
plaintiff  proved  that  the  horse  being  in  charge  of  one  Soule,  his  tenant,  as  bailiff 
for  the  defendant,  he  distrained  the  horse  for  rent  in  arrear;  that  after  the  liorse 
was  taken,  Soule,  who  claimed  to  own  him,  consented  that  the  pbintiff  might 
take  him  home  and  use  him  for  his  keeping  until  the  day  of  sale,  and  while  the 
horse  was  thus  in  the  possession  of  the  plaintiff,  the  defendant  took  him  away. 
The  Supreme  Court  affirmed  the  judgment,  which  was  for  the  jilaintiff. 


§  410.  OWNER  OF  GOODS  ESTOPPED.  367 

purchaser  from  t]ie  man  to  whom  such  possession  is  con- 
fided, has  hardly  ever  been  applied,  except  when  the  owner 
either  transferred  the  legal  title  with  the  possession,  reserv- 
ing or  raising  a  trust,  or  furnished  such  unequivocal  indicia 
of  absolute  ownership  with  the  possession,  as  to  mislead  the 
purchaser.  The  latter  advancing  his  money,  and  taking 
without  notice  of  the  trust,  or  in  confidence  of  appearances, 
shall  then  hold.  In  the  first  case,  the  legal  right  is  allowed 
to  prevail  against  the  equitable  ;  and  in  the  latter,  the  original 
owner  is  estopped  to  gainsay  the  language  held  by  the  in- 
dicia of  ownership.  In  the  first,  the  legal  right  is  allowed  to 
override  the  lurking  equity;  in  tbe  second,  the  owner  is 
timself  forbidden  to  practice  a  fraud. ^ 

§  410.  Mere  possession  will  not  give  the  vendee  of  the 
possessor  a  title  to  the  goods  as  against  the  true  owner,  even 
though  tbe  vendee  be  a  bona  fide  one,  without  notice  of  the 
rights  of  the  owner.  If  it  would,  one  who  leaves  his  watch 
at  a  watchmaker's  to  be  repaired,  or  keej^s  his  horse  at  a  livery 
stable,  or  who  lends  his  watch  or  horse  to  another  for  a  short 
period,  would  be  liable  to  be  divested  of  his  property  through 
a  sale  by  the  temporary  possessor.  But  if  one  intrust  an- 
other with  both  the  possession  and  the  indicia  of  the  right 
of  disposition,  then  a  sale  by  the  possessor  will  vest  the  title 
in  his  hona  fide  vendee  without  notice.  The  mere  giving  of 
the  possession  of  goods  to  one  whose  general  and  acknowl- 
edged business  is  not  that  of  a  sale  of  such  goods,  although 
he  may  be  incidentally  concerned  in  the  purchase  and  sale  of 
such  goods,  does  not  transfer  to  him  the  external  indicia  of 
the  right  of  disposition.  So  likewise,  if  one  carries  on  two 
distinct  branches  of  business — e.  g.,  repairing  watches  for 
others,  and  buying  and  selling  watches  on  his  own  account, 
— an  owner  of  goods  who  delivers  them  to  him  by  reason 
of  his  carrying  on  one  branch,  does  not  give  him  the  external 

'  Ash  V.  Putuam,  1  Hill,  303. 


308  TITLE   TO   TERSONAL  PROPERTY.  §§  411,  412. 

indicia  of  tlie  riglit  of  disposition  by  reason  of  his  carrying 
on  the  other  branch,^  "' 

6.    When 'property  in  goods  vests  in  trespasser. 

§  411.  Although  when  a  trespasser  takes  a  chattel  into 
his  possession,  and  the  plaintiff  recovers  damages  for  the 
specific  chattel  so  taken,  the  recovery  and  satisfaction  of 
judgment,  change  the  property  by  operation  of  law ;  yet  this 
only  occurs  where  the  amount,  paid  by  the  wrong-doer,  in- 
cludes the  value  of  the  article  for  the  taking^  of  which  the 
action  is  brought.^  f  It  was  accordingly  held,  that  the 
settling  of  an  action  for  trespass  in  cutting  down  timber,  by 
the  payment  of  damages  therefor,  did  not  transfer  to  the 
trespasser,  a  right  to  the  timber  cut  down  and  remaining  on 
the  land,  although  he  had  worked  the  timber  up  into 
shingles.'^  So  likewise,  where  in  an  action  by  the  Trustees 
of  Dartmouth  College  against  one  Loomis,  for  cutting  on 
theii'  land,  pine  timber  trees,  Loomis  having  admitted  their 
rio-ht  to  the  trees,  they  abandoned  so  much  of  their  suit  as 
was  for  the  recovery  of  the  value  of  the  timber,  and  prose- 
cuted it  for  the  injury  sustained  by  the  entering  and  cutting 
only,  and  judgment  was  entered  in  their  favor  for  nominal 
damages,  it  was  held  that  by  this  judgment,  the  title  to  the 
timber  was  not  changed.* 

7.  Property   made  chattels  hy  agreement. 
§  412.  The    customary    distinction    between    real    and 

^  Saltus  V.  Everrett,  20  Wend.  267 ;  affi'g  s.  c.  15  lb.  474 ;  Covill  v.  Hill,  4 
Denio,  323;  Ely  v.  Ehle,  3  Comst.  506;  Linnen  v.  Cruger,'40  Barb.  633. 

"^  Fox  V.  Northern  Liberties,  3  Watts  &  Serg.  103 ;  Jones  v.  M'Neil,  2  Bailey, 
466;  Goldsmith  v.  Stetson,  39  Ala.  183;  Thurst  v.  West,  31  N.  Y.  210. 

*  Betts  V.  Lee,  5  Johns.  348.  ■*  Loomis  v.  Green,  7  Maine,  386. 

*  Where  shingles,  which  were  made  and  left  on  vacant  land,  were  carried 
away  without  the  owner's  knowledge  or  con'sent,  it  was  held  that  he  might 
maintain  an  action  of  trespass  therefor,  although  they  were  taken  with  the  per- 
mission of  one  to  whom  the  land  was  conveyed  l)efore  their  removal  (Reader  v. 
Moody,  3  Jones  Law,  N.  C.  372). 

t  The  payment  of  a  judgment  rendered  in  an  action  for  taking  and  carrying 
away  o-oods  Vests  the  property  in  them  in  the  defendant,  although  part  of  the 
goods°belonged  to  the  plaintiff's  wife  before  marriage  (Schindel  v.  Schindel,  12 
Md.  108). 


§§  413,  414.  GENERAL  EULE   AS  TO   FIXTUKES.  3G9 

personal  property,  cannot  in  general,  be  abrogated  by  tbe 
agreement  of  tbe  parties.  It  may  bowever  be  done  in  re- 
lation to  tbings  wbicb  being  originally  personal  ill  tbeir 
nature,  are  attacbed  to  tbe  realty  in  sucb  manner  tbat  tbey 
may  be  detacbed  witboiit  being  destroyed  or  materially 
injured,  and  witbout  tbe  destruction  of,  or  material  injury 
to  tbe  tbings  real,  witb  wbicb  tbey  are  connected ;  tbougb 
their  connection  witb  tbe  land,  or  otber  real  estate  is  sucb, 
tbat  in  tbe  absence  of  an  agreement,  or  of  any  special  re- 
lation between  tbe  parties  in  interest,  tbey  would  be  a  part 
of  tbe  real  estate.-^  It  is  well  settled  tbat  erections  wbicb, 
by  tbe  general  rules  of  law,  would  belong  to  the  freehold, 
may  become  personalty  by  agreement  between  tbe  owner 
of  tbe  land,  and  tbe  party  claiming  tbe  erections. 

§  413.  But  where  tbe  subject  or  mode  of  annexation  is 
sucb  tbat  tbe  attributes  of  personal  property  cannot  be  pred- 
icated of  tbe  tbing  in  question  ;  altbougb  rigbts  by  way  of 
license  may  be  created  in  it,  yet  it  cannot  be  made  alienable 
as  chattels,  or  subjected  to  tbe  general  rules  by  wbicb  tbe 
succession  of  tbat  species  of  property  is  regulated.  A  bouse, 
for  instance,  wbicb  cannot  be  removed  witbout  practically 
destroying  it,  cannot  be  made  a  cbattel  by  agreement ;  and 
tbe  same  is  true  of  tbe  bricks,  beams,  or  otber  materials  of 
wbicb  tbe  walls  of  the  house  are  composed,  and  wbicb  are 
essential  to  its  support."^ 

8.   General  rule  as  to  fixtures. 
§  414.  Tbe  old  rule  of  law  seems  to  bave  been  that  wbat- 
ever  was  annexed  to  tbe  freebold  became  part  of  it,  and.  could 

'  Ford  V.  Cobb,  20  N.  Y.  344. 

*  In  Fryatt  v.  Sullivan  Co.  5  Hill,  116,  a  ce-rtain  steam  engine  and  boiler 
were  leased,  and  the  lessees  took  them  to  their  smelting  works,  and  affixed  them 
so  firmly  to  the  freeliold  that  they  could  not  be  removed  without  destroying 
the  building  in  wliich  they  were  j)laced.  The  defendants  made  title  to  the 
building  under  a  mortgage  executed  after  the  engine  had  been  thus  annexed, 
and  the  owner  of  tlie  engine  and  boiler  brought  trover  for  them.  It  was  held 
that  the  articles  had  been  converted  into  real  estate,  and  that  the  remedy  of  the 
plaintiff  was  against  the  party  wlio  wrongfully  converted  them  from  personal 
into  real  property;  and  that  the  action  could  not  be  sustained  against  the  owners 
of  the  real  estate  (Affirmed  7  Hill,  539,  Approved  in  Ford  v.  Cobb,  supra). 
Vol.  I.—  24 


370  TITLE   TO   PERSOIfAL    PROrEETY.  §  415. 

not  be  taken  from,  it,  understanding  "annexed  to  the  free- 
hold "  fastened  or  connected  with  it.  So  that  mere  juxta- 
position, or  the  laying  of  an  object,  however  heavy,  on  the 
freehold  did  not  amount  to  annexation.^  Cases  of  construct- 
ive annexation  were  early  recognized,  in  which  an  object 
really  a  chattel  was,  for  certain  purposes,  considered  as  an- 
nexed to  the  freehold.  Thus,  in  Liford's  case,^  it  is  said  to 
have  been  resolved  in  AVinstow's  case,  of  Gray's  Inn,^  that  if 
a  man  has  a  horse  mill,  and  the  miller  take  the  mill  stone 
out  of  the  mill  to  the  intent  to  pick  it  to  grind  the  better, 
although  it  is  actually  severed  from  the  mill,  yet  it  remains 
parcel  of  the  mill,  as  it  had  always  been  lying  upon  the  other 
stone,  and  by  consequence,  by  the  lease  or  conveyance  of  the 
mill,  it  shall  pass  with  it.  In  Regina  v.  Wheeler,"*  upon  a 
motion  to  stay  process  for  seizing  the  wheel  of  a  mill  as  a 
deodand,  and  because  it  w^as  parcel  of  the  freehold.  Lord 
Chief  Justice  Holt  is  reported  as  saying  :  "  A  mill  is  a  known 
thing  in  law,  and  so  are  the  parts  thereof,  and,  therefore,  if 
the  owner  of  a  mill  take  out  one  of  the  mill  stones  to  pick 
or  gravel  it,  and  devise  the  mill,  while  the  stone  is  severed 
from  it,  yet  it  shall  pass  as  part  of  the  mill."  On  this  ground 
process  was  stayed.  The  same  was  held  as  to  doors,  win- 
dows, rings  and  keys,  although  they  are  distinct  things  ;  and 
so,  also,  as  to  heirlooms,  charters,  and  evidence  attendant  upon 
the  inheritance,  and  the  deer  and  fish  in  a  park  or  fish  pond.^ 

§  415.  The  question  as  to  whether  or  not  certain  things 
are  to  be  deemed  fixtures  is  now  made  to  depend  not  upon 
the  fact  of  their  being  aflixed  or  fastened  to  the  land,  but 
upon  their  evident  purpose  and  adaj^tation  for  ornament  or 
use  in  the  situation  and  manner  in  which  they  were  located 
and  constructed,*'     It  has  been  well  said  that  "  A  thing  may 


'  Buller's  N.  P.  34;  Wadleieh  v.  Jauvrin,  41  N.  Harap.  503;  Anthony  v. 
Hauey,  8  Bing.  186;  Horn  v.  Baker,  9  East,  215;  Davis  v.  Jones,  2  B.  &  A.  165. 

^  (5  Coke,  50.  =  14  H.  8,  25  b.  "6  Mod.  187. 

''  Amos  &  Ferraid  on  Fixtures;  2  Kent's  Com. ;  Walker  v.  Sherman,  20  Wend. 
GCG. 

'^  Powers  V.  Dennison,  30  Yt.  752. 


§  415.  GENERAL    RULE   AS   TO   FIXTURES.  371 

be  as  "firmly  affixed  to  the  land  by  gravitation  as  by  clamps  or 
cement."  Its  character  may  depend  much  upon  tlie  object  of 
its  erection.  The  intention  of  the  person  making  the  erection 
often  exercises  a  controlling  influence,  and  its  connection  with 
the  land  is  looked  at  principally  for  the  purpose  of  ascertain- 
ing whether  the  intention  was  that  the  thing  in  question 
should  retain  its  original  chattel  character  or  was  designed 
to  be  made  a  permanent  accession  to  the  land.^  Although  in 
erecting  a  dwelling  its  doors,  windows,  blinds  and  shutters 
become  a  part  of  it,  and  the  manner  of  annexation  is  of  no 
particular  consequence,  yet  there  must  be  actual  or  construct- 
ive annexation  in  order  to  make  them  a  part  of  the  building. 
Where  at  the  time  a  person  conveyed  to  another  a  house  and 
premises,  the  building  had  in  it  all  the  windows,  it  w^as  held 
that  the  mere  fact  that  the  grantor  had  made  some  sash, 
painted  them,  and  set  glass  in  them,  intending  to  use  them 
at  some  future  time  in  the  construction  of  double  windov/s 
for  the  house,  did  not  constitute  constructive  annexation.^ 
In  Winslow  v.  The  Merchants'  Ins.  Co.,^  where  the  inquiry 
was  whether  a  steam  engine  and  other  machinery  of  a  manu- 
factory were  to  be  considered  as  fixtures,  and  had  vested  as 
such  in  the  defendants  under  a  mortsrao-e  of  the  building 
prior  to  the  period  when  they  were  erected,  in  opposition  to- 
the  claim  of  the  plaintiffs  under  a  subsequent  specific  mort- 
gage of  the  machinery  itself,  the  court  held  that  this  point 
was  to  be  determined  not  by  the  fact  whether  or  not  the 
machinery  was  affixed  to  the  building,  but  whether  it  was 
permanent  in  its  character  and  essential  to  the  purposes  for 
which  the  building  was  occupied.  ''^     In  a  case  in  New  York, 


'  Snedeker  v.  Warring,  12  N.  Y.  170. 

=  Peck  V.  Batchekler,  40  Vt.  233.  '  4  Mete.  306. 

*  "  The  rule  that  objects  must  be  actually  and  firmly  affixed  to  tlie  freehold  to 
become  realty,  or  otherwise  be  considered  as  personalty,  is  far  from  constituting 
a  criterion.  Doors,  window  blinds  and  shutters,  capable  of  being  removed  with- 
out the  slightest  damage  to  a  house,  and  even  though,  at  the  time  of  a  convey- 
ance an  attachment  or  a  mortgage,  actually  detached,  would  be  deemed,  we 
suppose,  a  part  of  the  house  and  pass  with  it.  And  so,  we  presume,  mirrors, 
wardrobes,  and  other  heavy  articles  of  furniture,  though  fastened  to  the  walls  by 
screws  with  considerable  firmness,  must  be  regarded  as  chattels.     In  general 


372  TITLE  TO   PERSONAL   PROPERTY.  §  415. 

the  Court  of  Appeals  held,  reversing  the  decision  of  the  Su- 
preme Court,  that  a  statue  erected  as  an  ornament  to  grounds 
maybe  a  part  of  the  realty,  although  not  fastened  to  the  base 
on  which  it  rests  and  capable  of  being  removed  without  fract- 
ure ;  and  also,  that  a  sun  dial  erected  without  being  in  any 
way  fastened,  upon  a  permanent  foundation  of  stope  in  the 
same  grounds,  was  a  part  of  the  real  estate,  although  it 
weighed  only  two  hundred  pounds,  and  could  readily  be  re- 
moved.^ In  the  same  case,  the  court  disregarded  as  incom- 
petent and  immaterial  the  testimony  of  the  former  owner  of 
the  statue,  that  when  he  set  it  up  •lie  did  not  design  it  as  a 
permanent  erection,  but  intended  to  sell  it  whenever  an 
opportunity  should  offer.  * 

terms,  we  think  it  may  be  said  that  when  a  building  is  erected  as  a  mill,  and  the 
water  works  or  steam  works  which  are  relied  ou  to  move  the  mill  are  erected 
at  the  same  time,  and  the  works  to  be  driven  by  it  are  essential  parts  of  the 
mill,  though  not  at  the  time  of  the  conveyance,  attachment  or  mortgage  attached 
to  the  mill,  they  are  yet  parts  of  it,  and  pass  with  it  by  the  conveyance,  mortgage 
or  attachment.''  Shaw,  C.  J.,  in  Winslow  v.  The  Merchants'  Ins.  Co.,  srtpra. 
By  the  civil  law.  columns,  figures  and  statues  used  to  spout  water  as  fountains 
were  regarded  as  immovable  or  real,  though  it  was  inferred  that  statues  resting 
on  a  base  of  masonry  were  not  immovable,  becauselthey  were  there,  not  as  part  of 
the  construction,  but  as  ornaments  (Pandects,  Lib.  19,  §  17,  vol.  7,  by  Pothier, 
107).  By  the  French  law,  statues  placed  in  a  niche  made  expressly  to  receive 
them,  though  they  could  be  removed  without  fracture  or  detrioration,  are  im- 
movable or  part  of  the  realty  (Code  Nap.,§  525).  But  statues  standing  on  pedes- 
tals in  houses,  court  yards  and  gardens,  retain  their  character  of  movable  or  per- 
sonal (3  Touillie:,  Droit  Civil  de  France,  12).  This  lias  reference  to  statues  only, 
which  do  not  stand  on  a  substantial  and  permanent  base  or  separate  pedestal 
made  expressly  for  them.  For  when  a  statue  is  placed  on  a  pedestal  or  base  of 
masonry  constructed  expressly  for  it,  it  is  governed  by  the  same  rule  as  when 
placed  in  a  niche  made  expressly  to  receive  it,  and  is  immovable  (2  Repertoire 
Journal  du  Palais,  by  Ledru  Rollin,  518,  §  139).  The  statue  in  such  case  is  re- 
garded as  making  part  of  the  same  thing  with  the  permanent  base  upon  which 
it  rests.  The  reasons  for  the  French  law  upon  this  subject  are  stated  by  the 
same  author  in  the  same  work.  p.  517,  §  129,  where  the  rule  is  laid  down  with 
regard  to  such  ornaments  as  mirrors,  pictures  and  statues,  that  the  law  will  pre- 
sume the  proprietor  intended  them  as  immovable  when  they  cannot  be  taken 
away  without  fracture  or  deterioration,  or  leaving  a  gap  or  vacancy.  A  statue  is 
regarded  as  integral  with  the  permanent  base  on  which  it  rests,  and  which  was 
erected  expressly  for  it,  when  the  removal  of  the  statue  will  ofteud  the  eye  by 
presenting  before  it  a  distasteful  gap,  a  foundation  and  base  no  longer  appropri- 
ate or  useful  (Id.  §  139).  Things  immovable  l)y  destination  are  said  to  be  those 
objects  movable  in  their  nature  which,  without  being  actually  held  to  the  ground, 
are  destined  to  remain  there  perpetually  attached  for  use,  improvement  or  orna- 
ment (2  Ledru  Rollin,  Repertoire  Generale,  514,  §  30). 

'  Snedekerv.  Warring,  12  N.  Y.  170,  Johnson,  J.,  dissenting. 

*  In  Voorhis  v.  Freeman,  2  W.  &  Serg.  116,  it  was  held  that  rolls  which 
formed  part  of  the  machinery  of  a  mill  were  to  be  regarded  as  fixtures,  although 
detached  at  the  time  the  question  arose,  and  kept  on  hand  for  tlie  purpose  of  re- 


§  41G.  GENERAL   RULE   AS  TO   FIXTURES.  373 

§  416.  The  strict  rule  of  the  ancient  law  has  been  much 
relaxed  in  favor  of  trade,  and  to  encourage  industry.  As 
between  landlord  and  tenant,  the  latter  may  take  away,  dur- 
ing the  term,  chimney  pieces,  wainscot,  machinery  and  im- 
plements, such  as  brewing  vessels,  coppers,  engines,  cider 
mills,  &c.,  which  he  has  erected,  and  by  which  he  not  only 
enjoys  the  profits  of  the  estate,  but  carries  on  a  species  of 
trade.  So  likewise,  trees,  plants  and  shrubs,  in  a  nursery, 
are  personal  chattels  as  between  the  landlord  and  tenant  and 
his  assigns,  for  the  taking  and  removal  of  which  an  action  of 
trespass  will  lie.^  *     But  the  tenant  must  remove  the  trees  at 


placing  others  that  were  actually  in  use,  and  in  Pyle  v.  Pennock,  2  W.  &  Serg. 
891,  that  plates  of  iron  which  had  been  placed  on  the  floor  of  a  rolling  mill  to  protect 
it  against  fire  were  a  part  of  the  building,  although  not  fastened  to  it  in  any  way, 
and  kept  in  place  by  their  own  weight.  In  the  case  of  a  factory,  the  wheel  or 
engine  which  furnishes  the  motive  power,  and  all  that  part  of  tlie  gearing  and 
machinery  which  has  special  relation  to  tlie  building  with  which  it  is  connected, 
belong  to  the  freehold,  while  an  independent  machine  like  a  loom,  which  if  re- 
moved still  remains  a  loom,  and  can  be  used  as  such  whenever  it  is  wanted  and 
power  can  be  applied  to  it,  will  still  retain  its  character  of  personalty  (Murdock  v. 
Giftbrd,  18  N.  Y.  R.  28,  per  Johnson,  C.  J,  citing  Powell  v.  Monson  Co.  3 
Mason,  459;  Gale  v.  Ward,  14  Mass.  352;  Cresson  v.  Stout,  17  Johns.  116; 
Swift  v.  Thompson,  9  Conn.  63;  Teaff  v.  Hewitt,  1  McCook,  511;  Vanderpoel 
v.  Van  Allen,  10  Barb.  157).  Where  machinery  is  severed  from  a  mill,  the 
owner  is  not  thereby  divested  of  his  property,  but  what  was  before  part  of  his 
freehold  becomes  by  the  severance  personal  property  and  may  be  reclaimed 
(Morgan  v.  Varick,  8*  Wend.  587).  In  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826, 
it  was  held  that  mill  machinery,  when  severed  from  the  mill,  became  the  per- 
sonal property  of  the  owner  of  the  mill,  and  though  it  was  sold  as  the  personal 
property  of  the  tenant  to  whom  the  mill  had  been  demised,  that  no  property 
passed  to  the  purchaser,  but  that  the  landlord  might  bring  trover.  But  accord- 
ing to  Gordon  v.  Harper,  7  Taunt.  9,  and  several  other  cases,  if  the  machinery 
in  that  case  had  been  demised  to  the  tenant  as  personal  property  the  action  could 
not  have  been  maintained  until  the  tei-mination  of  the  lease.  Tlie  owner  of  land 
granted  to  another  a  certain  water  privilege  for  the  purpose  of  sawing  and  manu- 
facturing marble  in  a  mill  contemplated  to  be  buiit  on  the  premises,  and  '"also 
the  right  of  procuring  marble  from  the  grantor's  land  free  and  unmolested,  but' 
not  to  the  exclusion  of  other  grantees."  Held  that  the  grantor  had  no  riglit  to 
the  small  pieces  of  marble  necessarily  broken  off  by  the  grantee  in  blasting  and 
in  reducing  the  blocks  to  a  shape  suitable  for  sawing  (Rice  v.  Ferris,  2  Vt.  62). 

'  Miller  v.  Baker,  1  Mete,  27. 

*  In  Lee  v.  Risdon,  7  Taunt.  191,  Gibbs,  Ch.  J.,  in  discussing  the  general 
question  of  fixtures,  says  that  trees  in  a  nursery  are  a  part  of  the  freehold  until 
severed.  In  Miller  v.  Baker,  mjrra,  Dewey,  J.,  remarks  that,  while  this  is  no 
doubt  true  as  between  the  heir  and  executor,  and  would  be  so  also  where  the  en- 
tire property  in  tlie  land  and  in  the  trees  growing  thereon,  is  united  in  the  same 
person,  yet  that  where  the  owner  of  the  trees  has  no  permanent  interest  in  the 
soil,  but  is  using  it  for  the  mere  purpose  of  nourishing  and  sustaining  his  trees 
until  the  proper  time  shall  arrive  for  their  removal,  the  interest  in  the  trees  may 
be  considered  as  separated  from  the  realty. 

Wiuc  plants  growing  upon  a  farm  are  personrd  property  as  between  the  tenant 


374  TITLE  TO  PERSONAL  PKOPBETY.  §  417. 

the  expiration  of  the  lease,  or  the  right  to  them  will  vest  in 
the  landlord.-^  * 

§  417.  There  has  been  little,  if  any,  deviation  from  the 
old  rule  as  between  the  heir  and  executor,  the  mortgagee 
and  mortgagor,  and  the  grantee  and  grantor.^  f    Wadleigh  v. 

of  the  farm  and  his  landlord.  Tlie  tenant  has  the  right  to  remove  them  from 
the  farm,  and  his  mortgagee  of  them,  acquires  the  same  right  (Wintermute  v. 
Light,  4(3  Barb.  278). 

Wliere  property  tortiously  severed  from  the  freehold  remains  some  time  upon 
the  premises,  and  is  afterwards  removed,  the  statute  of  limitations  runs  from  tho 
date  of  removal,  and  not  from  the  time  of  the  severance  (Morgan  v.  Varick,  8 
Wend.  587). 

'  2  Kent's  Com.  343;  Poole's  Case,  1  Salk.  368:  G  Bing.  437;  Cresson  v. 
Stout,  17  Johns.  116;  Holmes  v.  Tremper,  20  lb.  29;  Stockwell  v.  Marks,  5 
Shepl.  455;  Gaffield  v.  Hapgood,  17  Pick.  192;  White  v.  Arndt,  1  Whart.  91; 
Union  Bank  v.  Emerson,  15  Mass.  159;  Lee  v.  Risdon,  7  Taunt.  188;  Lyde 
V.  Paissell,  1  B.  &  A.  394;  Beckwith  v.  Bovce,  9  Mo.  560;  Whiting  v.  Brastow, 

4  Pick.  310;  Van  Ness  v.  Pacard,  2  Peters,  137;  Brooks  v.  Galster,  51  Barb. 
196. 

'  Litt.  53,  a;  Dav  v.  Bisbitch,  Cro.  Eliz.  374;  Cave  v.  Cave,  2  Vera.  508; 
Culling  v.  Tuffnal,  Bui.  N.  P.  34;  Poole's  Case,  1  Salk.  368;  (xpaite  Quincy,  1 
Atk.  477;  Dudley  v.  Ward,  Amb.  113;  Lawton  v.  Salmon,  in  note  to  Lawton  v. 
Lawton,  3  Atk.  13,  and  in  note  to  Fitzherbert  v.  Shaw,  1  H.  Bi.  259:  Elwes  v. 
Maw,  3  East.  38 ;  Penton  v.  Robart,  2  East.  88 ;  Day  v.  Perkiua,  2  Sandf.  Ch. 
R.  359;  Kirwan  v.  Latour,  1  Har.  &  J.  289;  3Iiller  v.  Plumb,  6  Cowen,  665; 
Connor  v.  Coffin,  2  Fost.  538. 

*  The  rule  as  to  the  right  of  a  tenant  to  remove  fixtures,  has  been  stated  to 
be,  that  things  annexed  to  the  freehold,  if  movable  at  all,  must  be  moved  before 
the  expiration  of  the  tenancy.  The  rule  is  founded  on  the  supposed  abandon- 
ment of  the  fixtures  Vi'heu  left  on  the  premises ;  or  that  they  become  a  gift  in 
law,  to  him  in  reversion,  and  are  not  removable  (Beardsley  v.  Sherman,  1  Daly, 
325;  Poole's  Case,  1  Salk.  368;  Lyde  v.  Russell,  1  Barn.  &  Aid.  394;  Marshall 
V.  Lloyd,  2  Mees.  &  Wels.  450;  ex  parte  Quincy,  1  Atk.  477;  Lee  v.  Risdon,  7 
Taunt.  188;  Colgrave  v.  Dias  Santos,  2  Barn.  &   Cress.  76;  Reynolds  v.  Shuler, 

5  Cow.  323;  Penton  v.  Robart,  2  East,  88). 

In  Preston  v.  Briggs,  16  Yt.  124,  it  was  held  that  the  right  might  be  exer- 
cised during  the  term,  or  irithin  a  reasoni/ble  time  aftencurd.  Articles  affixed  to 
the  laud  iav  the  improvement  of  the  freehold — as  for  the  purposes  of  agricultui'e 
—  cannot  be  removed  by  the  tenant  even  during  his  term  (Elwes  v.  Maw,  3 
East,  38). 

t  Where  in  an  action  for  entering  the  plaintiff's  premises  and  removing  there- 
from twenty-three  iron  kettles  used  for  making  salt,  it  appeared  that  the  kettles, 
which  were  iml)edded  in  brick  arches,  were  bought  of  the  defendant  and  mort- 
gaged back  to  him  to  secure  the  purchase  money,  and  that  the  mcraey  not  having 
been  paid,  the  defendant  entered  upon  the  premises  and  carried  away  the  kettles 
by  virtue  of  the  mortgage.  It  was  proved  that  the  kettles  which  were  set  in  the 
arches  alter  the  filing  of  the  mortgage,  could  only  be  removed  by  tearing  off  a 
portion  of  the  upper  bricks  of  tlie  arch  and  prying  the  kettles,  out  by  a  plank 
and  bars;  that  it  was  the  general  custom  to  take  the  kettles,  out  and  reset  them 
every  season,  and  that  they  had  been  taken  out  and  reset  before  the  defendant 
took  them.  It  was  held  that  the  kettles  were  personalty  as  against  a  subsequent 
purchaser  of  the  salt  works,  who  had  no  notice  of  the  mortgage  other  than  from 
the  fact  of  its  being  on  file  in  the  clerk's  office  of  the  court  (Ford  v.  Cobb,  20  N. 
Y.  344). 

In  Connecticut,  the  following  have  been  held  a  part  of  the  realty :  a  windlass 


§418.  GENEKAL   RULE   AS   TO   FIXTURES.  375 

Jauvrin/  was  an  action  of  trespass  brought  by  tlie  vendee 
against  the  vendor  of  a  farm,  for  carrying  away  from  the 
premises,  after  the  sale,  a  cider  mill  and  press,  stanchion 
timbers,  hinge  staples,  tie  chains,  and  tie-up  planks.  When 
the  plaintiff  purchased  the  farm,  a  barn  thereon  was  beiog 
repaired;  and  for  that  purpose,  the  floors  of  the  tie-ups,  with 
the  stanchions  and  stanchion  timbers,  and  the  chains  had 
been  removed,  and  only  partially  replaced  at  the  time  of  the 
conveyance.  Tlie  doors  and  windows  and  hinge  hooks,  by 
w^hich  they  had  been  supported,  had  also  been  removed. 
The  defendant  contended  that  the  articles  in  question  were 
personal  property,  and  did  not  pass  to  the  plaintiff  by  the 
conveyance  of  the  farm  and  buildings.  A  verdict,  however, 
having  been  found  for  the  plaintiff  in  the  court  below,  the 
Supreme  Court  refused  to  disturb  it."^'  The  later  authorities 
hold  that  as  to  fixtures,  the  same  rule  prevails  between  mort- 
gagor and  mortgagee  as  between  grantor  and  grantee.^ 

§  418.  The  manure  of  animals  sj)read  about  the  barn 
yard,  or  lying  in  piles  at  the  stable  window,  passes  by  a 
deed  of  the  real  estate  to  the  grantee.^  f  Where  the  defend- 
ant occupied  the  farm  as  tenant,  the  year  preceding  the  re- 
moval of  the  manure,  and  the  manure  was  made  from  the 
crops  raised  upon  the  farm,  which  the  rules  of  good  hus- 
bandry required  should  be  used  and  expended  upon  and 
about  the  farm,  it  was  held  that  in  the  absence  of  any  agree- 
in  a  slaughter  house  (Cnpeii  v.  Peckham,  35  Conn.  88) ;  a  bell  hung  in  the  tower 
of  a  factory  (Alvord  Carriage  Manf.  Co.  v.  Gleason,  36  Conn.  86) ;  a  portable  hot 
air  furnace  set  in  a  pit  pi-eparecl  for  it  in  the  bottom  of  the  cellar  of  a  dwelling- 
house,  held  in  its  place  siuiplj'  by  its  own  weight,  together  with  the  smoke-pipe 
belonging  to  it  (Stockwell  v.  Campbell,  89  Conn.  362j. 

'  41  N.  Hamp.  503.  =  Snedeker  v.  Warring,  12  K  Y.  170. 

'  Parsons  v.  Camp,  11  Conn.  525. 

*  Where  A.  quitclaimed  land  to  W.,  on  which  a  crop  of  wheat  was  growing, 
reserving  the  wheat  by  parol  both  at  the  time  of  the  execution  of  the  quitclaim 
and  in  a  previous  conversation,  when  it  was  agreed  by  the  parties  tliat  it  should 
be  reserved ;  it  was  held  that  evidence  of  such  reservation  was  not  admissil)le  to 
contradict  the  conveyance  in  writing  which  passed  the  title  of  the  wheat  with 
the  land  (Austin  v.  Sawyer,  9  Cowen,  89). 

t  So  with  fences  and  materials  for  a  fence,  though  not  actually  in  use  for 
that  purpose  at  the  time  of  the  conveyance  (VVadleigh  v.  Jauvrin,  supra,  and 
cases  cited). 


376  '       TITLE    TO  PERSONAL  PROPERTY.  §  418. 

ment  authorizing  it,  he  would  uot  have  a  right  to  remove 
the  manure  from  the  farm.  Even  upon  the  supposition  that 
as  between  the  defendant  and  the  grantor  of  the  plaintiff, 
the  defendant  had  the  right  to  remove  the  manure,  yet,  in 
the  absence  of  any  notice,  either  actual  or  constructive,  to 
the  plaintiff  of  this  right,  the  defendant's  intention  to  remove 
it  could  not  affect  the  plaintiff's  right  to  the  manure,  unless 
that  intention  was  manifested  by  some  act  sufficient  to  put 
the  plaintiff  upon  inquiry  at  the  time  of  his  purchase.^  In 
Stone  V.  Proctor,^  Proctor  sold  his  farm  to  Stone,  March  22d, 
but  was  to  retain  possession  until  the  1  st  of  April  following. 
On  the  28th  and  29th  of  March,  he  drew  from  the  premises 
the  manure  as  it  originally  lay  in  the  barn  yard,  and  in 
heaps  at  the  stable  windows.  The  plaintiff  proved  his  deed, 
which  was  in  the  usual  form,  and  showed  the  removal  of  the 
manure  by  the  defendant ;  and  it  was  held  that  he  was  en- 
titled to  judgment.  Conner  v.  Coffin,^  was  an  action  of  tres- 
pass for  breaking  and  entering  the  plaintiff's  close,  and  carry- 
ing away  manure.  It  appeared  that  one  Ham  sold  the  prem- 
ises to  the  plaintiff'  at  auction,  and  that  at  the  time  of  the 
sale,  no  reservation  was  made  of  the  manure ;  but  that  after 
the  farm  was  sold,  he  directed  the  auctioneer  to  set  up  the 
manure,  to  which  the  plaintiff  objected,  claiming  it  as  a  part 
of  his  purchase,  and  forbidding  the  sale.  No  sale  of  the 
manure  took  place  on  that  clay ;  and  on  the  next  day.  Ham, 
with  a  full  knowledge  of  the  plaintiffs  claim,  gave  him  a 
deed  of  the  farm,  without  any  reservation  contained  therein. 
On  the  morning  before  the  sale  took  place,  however,  the 
plaintiff'  called  upon  Ham,  and  examined  the  premises,  and 
was  told  by  him  that  he  should  sell  the  farm  in  lots,  and  put 
up  the  manure  separately.  The  manure  was  under  cover  in 
a  place  made  for  it  behind  the  cattle  stall  in  the  barn.  On 
the  trial,  two  questions  arose:  1st.  Whether  the  manure 
passed  by  the  conveyance,  assuming  that  there  was  no  reser- 

'  Wetherbee  v.  Ellison,  19  Vt.  379. 

^  2  D.  Cliipman,  108;  and  see  Kittredge  v.  Woods,  3  N.  Hamp.  503. 

»  2  Fost.  538. 


§§419,  420.         GENERAL   RULE   AS  TO  FIXTURES.  377 

vatiou  in  the  sale;  and  second,  whether  the  evidence  was 
competent  to  show  a  reservation.  The  jury  having  found 
for  the  plaintiff,  the  Supreme  Court  directed  judgment  to  be 
entered  on  the  verdict. 

§  419.  Manure  made  on  a  farm  occupied  by  a  tenant  in 
the  ordinary  course  of  husbandry,  consisting  of  collections 
from  the  stable  and  barn  yard,  or  of  compost  formed  by 
an  admixture  of  those  with  soil  or  other  substances,  is  by 
usage,  practice  and  the  general  understanding,  so  attached  to 
and  connected  with  the  realty,  that  in  the  absence  of  any 
express  stipulation  on  the  subject,  an  outgoing  tenant  has  no 
right  to  remove  it,  or  sell  it  to  be  removed ;  and  such 
removal  is  a  tort  for  which  the  landlord  may  have  redress  ; 
and  such  sale  will  vest  no  property  in  the  vendee.  The 
foregoing  rule  does  not  apply  to  manure  in  a  livery  stable  or 
in  any  manner  not  connected  with  agriculture.  A  farm 
tenant  has  a  qualified  property  in  manure  to  be  used  on  the 
farm.  But  if  he  sells  it,  he  thereby  relinquishes  his  posses- 
sion, and  it  vests  in  the  owner  of  the  freehold,  who  may 
maintain  trespass  de  honis  asjyortatis  against  the  yendee  for 
removing  it.^  ^''  Straw  raised  on  a  farm  which  is  cultivated 
on  shares,  is  not  considered  in  law  as  manure.  It  is  a  part 
of  the  crop,  and  belongs  to  the  owner  of  the  crojD,  unless 
there  is  some  stipulation  to  the  contrary.^ 

§  420.  Although  the  general  principle  of  law  is,  that  a 
building  permanently  fixed  in  the  freehold  becomes  a  part  of 

'  Daniels  V.  Pond,  21  Pick.  367;  Lassell  v.  Reed,  6  Greenlf.  222;  Kittredge 
V.  Woods,  3  N.  Hamp.  503;  Lewis  v.  Lyman,  23  Pick.  437;  Conner  v.  Coffin, 
22  N.  Haiup.  541;  Plumer  v.  Plumer,  30  lb.  558;  Perry  v.  Carr,  44  lb.  118; 
Middlebrook  v.  Corwin,  15  Wend.  169;  Goodrich  v.  Jones,  2  Hill,  142. 

"  Forbes  v.  Shattuck,  22  Barb.  568. 

*  In  Conner  v.  Coffin.  sup?'a,  it  was  stated  by  Eastman,  .J.,  that  he  had 
found  no  case  where  the  tenant  of  a  farm  had  Ijeen  permitted  to  remove  the 
inanui'e  which  had  accumulated  in  the  course  of  his  term.  It  seems  however 
to  have  been  held  in  North  Carolina,  that  a  tenant,  in  removing,  may  lawfully 
take  with  him,  where  there  is  no  covenant  or  custom  to  the  contrary,  all  the 
manure  made  on  the  farm  during  his  term.  But  he  has  no  right  to  it,  if 
he  leaves  it  when  he  quits  the  farm.  Taking  away  portions  of  the  earth  that 
are  unavoidably  mixed  with  the  manure  in  raking  it  into  heaps,  will  not  make 
the  tenant  a  tort-feasor  (Smithwich  v.  Ellison,  2  Iredell,  32G). 


378  TITLE  TO  PERSONAL  PEOPERTY.  §  420. 

it, — that  prhna  facie  a  house  is  real  estate  belonging  to  the 
owner  of  the  laud  on  which  it  stands, — yet  it  may  be  per- 
sonal estate ;  and  is  so  regarded  where  it  was  erected  by  the 
builder  wdth  his  own  money,  and  for  his  own  exclusive  use, 
as  disconnected  from  the  use  of  the  laud,  and  with  the  un- 
derstanding between  the  owner  of  the  land  and  the  builder 
that  it  may  be  removed.-^  *  The  general  rule,  that  a  building 
erected  on  land  is  regarded  as  real  estate,  has  also  been 
relaxed  in  favor  of  tenants.^  However  the  rights  of  land- 
lords against  their  tenants  may  have  been  considered  in  an- 
cient times,  it  is  now  settled  that,  in  favor  of  trade,  manu- 
factures and  business,  a  building  erected  for  those  objects 
may  be  removed  by  him  whose  estate  is  determined.     In 

'  Doty  y.  Gorham,  5  Pick.  487;  Marcy  v.  Darling,  8  II3.  283;  Ashmun  v.  Wil- 
liams, lb.  403;  Curry  v.  Com.  Ins.  Co.  10  lb.  540;  Wells  v.  Banister,  4  Mass. 
514;  Taylor  V.  Townsend,  8  lb.  411;  Benedict  v.  Benedict,  5  Dav,  464;  Prince 
V.  Case. '10  Conn.  379;  Parker  v.  Redfield,  lb.  490;  Baldwin  v. 'Breed,  16  lb. 
60;  Curtissv.  Hoyt,  19  Ih.  154;  Packer  v.  Kelly,  1  Greenl.  117;  Yale  v.  Seely, 
15  Vt.  221. 

"  Beers  v.  St.  John,  16  Conn.  332. 

*  The  above  cited  cases,  decided  in  Massachusetts  and  Maine,  hold  that  where 
one  erects  a  l)uilding  on  the  land  of  another,  the  building  remains  the  property 
of  him  who  placed  it  there,  and  is  personal  property  in  him.  But  in  Connecti- 
cut, in  Benedict  v.  Benedict,  supra,  the  ancient  common-law  doctrine  was 
adopted,  that  a  fixed  and  permanent  building  erected  upon  another's  land,  even 
by  his  license,  became  his  property ;  but  if,  in  its  nature  and  structure,  it  was 
capable  of  being  removed,  and  a  removal  was  contemplated  by  the  parties,  it 
was  personal  estate  in  the  builder;  and  where  the  license  was  improperly  re- 
voked, resort  must  be  had  to  a  court  of  chancery.  And  in  Curtiss  v.  Hoyt,  svpra, 
Waite,  J.,  in  dissenting  from  that  part  of  the  opinion  of  the  court  relating  to  tho 
question  whether  the  building  was  real  or  personal  property,  said  that  he  could 
not  accede  to  the  doctrine  tliat  if  a  man  erects  a  dwelling-house  in  a  fixed  and 
permanent  manner  upon  the  land  of  another  by  his  license,  such  dwelling-house 
becomes  personal  property,  and  may  be  transferred  in  the  same  manner  as  a  cart 
Oi'  a  wagon ;  and  that,  in  his  opinion,  it  could  only  be  conveyed  as  real  estate, 
although  the  owner  of  the  building  might  have  such  an  interest  in  it  as  would 
be  protected  by  a  court  of  equity,  and,  in  some  instances,  be  recognized  in  a 
court  of  law.  Ileermance  v.  Vernoy,  6  Johns.  5,  was  an  action  of  trespass, 
brought  by  Vernoy  in  the  court  below  against  Heermance  for  entering  upon  his 
land,  pulling  down  a  bark  mill  belonging  to  the  plaintiff,  and  taking  therefrom 
and  carrying  away  a  millstone,  the  iron  bands  and  bolts  with  which  the  same 
had  been  fastened  in  the  mill,  together  with  portions  of  the  mill.  The  defend- 
ant offered  to  prove  that  the  person  who  sold  the  premises  in  question  to  the 
])laintili,  verbally  excepted  from  such  sale  the  mill,  and  that  he 'afterwards  sold 
it  to  the  defendant.  The  court  were  inclined  to  think  that  the  mill  and  its  ap- 
purtenances were  not  part  of  the  freehold,  but  personal  property.  But  as  the 
entry  upon  the  land  of  the  plaintiff  was  a  trespass,  and  the  only  two  witnesses 
introduced  by  the  defendant  were  incompetent,  and  the  defendant  had  therefore 
shown  no  title  to  the  property  which  he  had  taken  away,  the  judgment  for 
the  plaintiff  below  was  affirmed. 


§  421.  GENERAL   RULE   AS   TO   FIXTURES.  379 

Lawton  v.  Salmon/  Lord  Mansfield  held  tliat  Improvements 
made  by  the  tenant  during  his  term  might  be  taken  away 
by  him,  if  he  did  not  thereby  prejudice  the  estate  of  his 
landlord.^  In  Peuton  v.  Robart,^  where  the  question  was  as 
to  the  rio-ht  of  the  tenant  to  take  down  and  remove  build- 
ings  erected  by  lilm  on  the  demised  premises,  Lord  Kenyon 
asks :  "  Shall  it  be  said  that  the  great  gardeners  and  nur- 
serymen In  the  neighborhood  of  London,  who  expend  thou- 
sands of  pounds  in  the  erection  of  greenhouses  and  hot- 
houses, tfec,  are  obliged  to  leave  all  these  things  on  the 
premises,  when  it  is  notorious  that  they  are  even  permitted 
to  remove  trees,  or  such  as  are  likely  to  become  such,  by  the 
thousand,  in  the  necessary  course  of  their  trade.  If  it  were 
otherwise,  the  very  object  of  their  holding  would  be  de- 
feated. This  is  a  description  of  property  divided  from  the 
realty." '' 

§  421.  Where  a  person  bulkls  a  house  upon  another's 
land,  with  the  verbal  leave  of  the  owner,  who  agrees  that 
the  house  may  be  removed  at  any  time  upon  notice  from 


'  1  H.  Black.  259,  note. 

*  And  see  Taylor  v.  Townsend,  8  Mass.  411.  '  2  East,  88. 

*  The  use,  by  a  tenant  for  years,  of  a  portion  of  the  materials  of  an  old  shop 
on  the  premises  in  the  construction  of  a  new  one,  will  not,  in  law,  vest  the  title 
of  the  latter  in  the  owner  of  the  former  if  the  new  building  is  a  different  and 
distinct  one  from  the  old  shop,  and  not  the  old  one  repaired  or  reconstructed. 
The  title  to  the  new  shop  would  depend  upon  whether  or  not  it  was  substantially 
and  essentially  the  same  shop  as  the  old  one.  In  determining  this  question,  it 
would  be  important  and  proper  for  the  jury  to  consider  what  proportion  of  the 
materials  of  one  entered  into  the  composition  of  the  other,  the  character  of  those 
materials,  the  particular  use  that  was  made  of  them,  and  the  place  they  occu- 
pied, and  the  purposes  they  answered  in  the  newly  erected  building  (Beers  v. 
St.  John,  supra).  An  action  of  trespass  quare  cluusum  /regit  cannot  be  main- 
tained by  a  landlord  against  an  under-tenant  at  will  of  a  tenant  for  years,  for 
taking  down  and  carrying  away  a  house  erected  by  him  on  the  demised  premises 
during  the  lease.  In  Tobey  v.  Webster,  3  Johns.  4G8,  the  premises  in  question 
were  rented  by  the  plaintiff  in  November,  1802,  to  one  Barber  for  two  years.  In 
July,  1803,  Barber  gave  the  defendant  written  permission  to  occupy  the  prem- 
ises as  long  as  the  defendant  should  remain  in  his  (Barber's)  employ,  and  to 
erect  a  small  addition  to  the  house.  In  November,  1808,  Barber  assigned  his 
lease  to  one  Coffin,  who,  in  February,  1804,  reassigned  it  to  the  plaintiff.  The 
lease  gave  permission  to  cut  timber.  The  house  was  built  l)y  the  defendant  with 
materials  cut  on  the  premises,  and  was  taken  away  by  tiie  defendant  previous  to 
the  reassignment  of  the  lease  to  tlie  plaintiff.  At  the  circuit,  a  verdict  was 
taken  for  the  plaintiff.  The  Supreme  Court  directed  the  verdict  to  be  set  aside, 
and  a  judgment  of  nonsuit  to  bo  entered. 


380  TITLE    TO   PERSONAL  PROPERTY.  §  421. 

him,  and  the  house  is  attached  to  the  freehold  so  as  to  be  a 
fixture,  a  subsequent  mortgagee,  without  notice  of  such 
license,  will,  after  he  has  taken  possession  of  the  land  under 
a  decree  of  foreclosure,  be  entitled  to  the  house,  and  may 
maintain  trespass  against  the  person  erecting  it,  if  he  then 
remove  it.  And  if,  after  foreclosure,  but  before  possession 
under  the  decree,  one  buys  out  the  mortgagee,  the  purchaser 
will  have  the  same  right  to  the  building  that  the  mortgagee 
had,  although  he  knew  that  the  house  was  built  with  the 
understanding  that  it  might  be  removed.^ 

'  Powers  V.  Dennison,  30  Vt.  752. 


CHAPTER  II. 

WRONGFUL   T-SlKING-    OF    PERSOXAL    PROPERTY    BY 
PRIVATE    PERSON. 

1.  Wliat  constitutes. 

2.  Creditor  obtaining  possession  of  goods  by  unlawful  means. 

3.  Party  directing  illegal  seizure  or  sale  by  oflBcer. 

4.  Eight  oi'  owner  of  goods  to  retake  them. 

5.  Return  of  property  by  wrong-doer. 

1.  What  constitutes. 

§  422.  Where  a  person  meddles  witli  tlie  goods  and 
chattels  of  another,  either  by  laying  hold  of,  removing,  or 
carrying  them  away,  he  thereby  becomes  a  trespasser,  unless 
the  act  can  be  justified ;  ^  and  he  incurs  liability,  though  he  take 
the  property  but  for  an  instant.^  *     In  order  to  constitute 


'  Webb  V.  Paternoster,  Godb.  282,  PL  401 ;  Farmer  v.  Hunt,  Brownl.  220. 

"^  Price  V.  Helyar,  4  Bing.  597. 

*  When  a  person  takes  possession  of,  and  appropriates  the  jiroperty  of  another 
without  right,  and  against  his  consent,  trespass  de  bonis  asportatis  will  lie ;  and 
trover  and  replevin  in  the  cepit  are  also,  in  general,  concurrent  remedies  (Connah 
V.  Hale,  23  Wend.  462;  Paugburn  v.  Partridge,  7  Johns.  140;  Thompson  v. 
Button,  14  lb.  84;  Mills  v.  Martin,  19  lb.  7;  -Clark  v.  Skinner.  20  lb.  465; 
Rogers  v.  Arnold,  12  Wend.  30;  Barrett  v.  Warren,  3  Hill,  348;  Pierce  v.  Van 
Dyke,  6  lb.  613;  Ely  v.  Ehle,  3  JST.  Y.  500;  Erisman  v.  Waters,  26  Penn.  St. 
R.  407 ;  Parker  v.  Hall,  55  Maine,  362).  It  is  a  well  established  principle  that  if 
one  man  wrongfully  and  by  force  take  from  another  man  his  property,  or  com- 
pel him  to  give  security  for  money,  or  procure  the  estate  of  anotlier  to  be  wrong- 
fully attached,  as  the'  property  of  a  third  person,  trespass  will  lie  (Bird  v.  Clark,  3 
Day,  272).  And  a  mere  intent  to  sell,  in  violation  of  law,  property  which  may 
be  used  for  lawful  purposes,  will  not  deprive  the  owner  of  his  remedy  against 
persons  illegally  interfering  with  it  (Dolan  v.  Buzzell,  41  Maine,  473). 

A  person  acquires  no  property  in  wood  and  timber  which  float  in  the  water 
over  his  land.  But  it  has  l^een  held  that  he  has  the  exclusive  right  to  seize  wood 
and  timber  floating  in  an  eddy  over  his  land,  and  to  appropriate  the  same  unless 
the  owner,  in  a  reasonable  time,  claims  it  (Rogers  v.  Judd,  5  Vt.  223). 

In  New  Hampshire,  the  statute  of  Dec.  1805,  in  force  before  the  Revised 
Statutes,  in  substance  provided  that  if  any  lumber,  put  into  any  river  or  stream 
running  thereinto,  and  by  the  water  carried  or  lodged  upon  any  improved  land, 
and  not  taken  away  by  the  owner  or  his  agent,  before  the  first  day  of  May,  an- 
nually, the  owner  of  the  land  miglit  detain  such  lumber  until  the  owner  of  the 
lumber  paid  all  damage;  and  if  the  parties  did  not  agree  upon  the  damages,  they 
were  to  be  settled  by  the  selectmen  or  three  justices  of  the  peace.  If  such  lum- 
ber was  not  removed  by  the  owner  on  or  before  the  1st  of  November,  annually, 


382  WRONGFUL   TAKING   OF   PERSONAL   PROPERTY.        §  422. 

the  offense,  there  need  not  have  been  an  actual  forcible  dis- 
possession. Any  tinlawtui  interference  with  the  property  of 
another,  or  exercise  of  dominion  over  it,  though  by  mere 
words,  by  w' hich  the  owner  is  damnified,  is  sufficient ;  ^  as 
the  merely  making  an  inventory,  and  threatening  to  remove 
the  property,  which  is  prevented  by  another  giving  a  receipt 
foT  it ;  or  by  the  unlawful  purchase  of  the  goods  of  a  third 
person  on  an  execution  sale  ;  ^  or  by  an  attachment,  although 
there  was  no  removal  of  the  goods  ;  ^  or  by  the  finder  of  a 
lost  article,  using  or  wasting  it.^  ^'  In  an  action  of  trespass 
for  taking  property  under  a  void  execution,  it  appeared  that 
among  the  property  sold  was  a  stack  of  hay  which  w^as  not 
removed  by  the  purchaser  ;  and  the  judge  having  instructed 
the  jury  to  allow  damages  for  its  value  as  well  as  for  the 
other  property  sold,  it  was  held  that  there  was  no  error  in 
the  direction  thus  given  ;  the  act  of  selling  the  hay  without 
authority,  being  a  trespass.^  Where  the  owmer  of  a  brig, 
after  agreeing  to  take  a  passenger  from  Boston  to  San  Fran- 
cisco, ordered  him  to  leave  the  vessel,  put  part  of  his  luggage 

the  owner  of  such  land  might  take  and  convert  the  same  to  his  own  use;  pro- 
vided that,  when  the  owner  had  paid  the  damages  and  costs,  he  should  have 
liberty  to  remove  the  same  before  the  1st  of  May  following.  For  a  construction 
of  this  statute  see  Wilson  v.  Wentworth,  5  Fost.  245,  dissenting  from  the  view 
taken  in  Walker  v.  Sawyer,  13  N.  Hamp.  196. 

'  Wintiingham  v.  Lafoy,  7  Cowen,  735 ;  Gibbs  v.  Chase,  10  Mass.  125 ;  Phil- 
lips v.  Hall,  8  Wend.  610;   Miller  v.  Baker,  1  Mete.  27. 

^  Hardy  v.  Clendenirg,  25  Ark.  436.  '  Neff  v.  Thompson,  8  Barb.  213, 

*  Isack  V.  Clarke,  1  Roll.  126;  Oxley  v.  Watts,  1  T.  R.  12;  Attack  v.  Bram- 
well,  32  L.  J.  Q.  B.  146. 

^  Lewis  V.  Palmer,  6  Wend.  367. 

*  Where  a  growing  crop  of  corn,  which  the  owner  bought  at  sherifTs  sale,  is 
tortiously  cut  and  thrown  on  the  ground,  the  declaration  must  be  for  trespass 
on  personal  chattels  (Brittain  v.  M'Kay,  1  Iredell,  265). 

In  North  Carolina,  forcible  trespass  on  personal  property  has  been  defined  the 
taking  of  it  from  the  owner  by  force  in  his  presence ;  intimidation  not  being  a 
necessary  ingredient  (State  v.  Pearman.  Phill.  N.  C.  371). 

A  person  can  only  be  deprived  of  his  property  by  his  own  voluntary  act,  or 
bv  operation  of  law.  The  thief  who  steals  an  article,  or  the  trespasser  who  takes 
it"  by  force,  acquires  no  title  by  such  wrongful  taking.  The  subsequent  posses- 
sion by  the  thief  or  the  trespasser,  is  a  continuing  trespass. 

If  goods  be  taken  lawfully,  the  person  taking  them  will  not  become  a  tres- 
passer ah  initio  by  refusing  to  redeliver  them  when  his  authority  to  detain  them 
is  ended  (Gardner  v.  Campbell,  15  .Johns.  401). 

An  action  on  the  custom  against  an  inn-keeper  or  common  carrier,  for  the  loss 
of  baggage,  is  founded  in  tort  or  misfeasance,  and  not  on  contract  (The  People 
v.  Willett,  26  Barb.  78). 


§  422.  WHAT    CONSTITUTES.  383 

asliore,  and  carried  the  residue  to  California,  without  giving 
the  passenger  notice  and  reasonable  opportunity  to  remove 
it,  it  was  held  that  the  contract  was  broken  and  terminated 
by  the  unlawful  conduct  of  the  defendant  before  the  actual 
sailing  of  the  vessel;  that  a  new  relation  thereupon  arose 
between  the  parties,  and  that  the  subsequent  acts  of  the  de- 
fendant constituted  him  a  trespasser.^  *  Second  Cong.  Soc. 
V.  Howard  ^  was  an  action  of  trespass  for  taking  and  carrying 
away  a  title  deed.  It  appeared  that  the  deed  was  intrusted 
to  one  Crafts  for  safe  keeping,  and  that  he  gave  it  up  to  the 
defendant,  who  was  the  grantor,  at  the  request  of  the  latter, 
and  because  the  grantee  stated  that  he  objected  to  the  deed 
at  the  time  it  was  executed.  It  was  held  that  the  plaintiff 
w^as  entitled  to  judgment,  but,  that  as  his  title  to  the  land 
was  not  divested  by  the  giving  up  of  the  deed,  unless  he 
released  the  land,  he  could  recover  nominal  damages  onl}-. 
So,  likewise,  where  a  person  delivered  goods  to  another  who 
had  no  right  to  them,  though  he  claimed  he  had,  and  agreed 
to  call  on  L.  and  make  it  satisfactory,  and  after  obtaining 
possession,  refused  to  see  L.,  but  appropriated  the  property 
to  his  own  use,  it  was  held  that  an  action  of  trespass  might 
be  maintained  against  kim  by  the  person  from  whom  he  so 
obtained  the  property.^  But  whei'e  the  defendant,  claiming 
a  sum  of  money  as  due  to  him  from  the  plaintiff,  his  lodger, 
locked  up  the  plaintiff's  goods  in  a  room  which  the  latter 
held  of  the  defendant,  and  in  which  the  plaintiff  had  put 
them,  kept  the  key,  and  refused  the  plaintiff"  access  to  them, 
saying  that  nothing  should  be  removed  until  the  defendant's 
bill  was  paid,  it  was  held  not  such  a  taking  of  the  goods  as 
would  sustain  an  action  of  trespass.*  f 


'  Holmes  v.  Doane,  3  Gray,  328. 

"^  16  Pick.  206;  and  see  Gibbs  v.  Chase,  10  Mass.  125. 

=  Hurd  V.  West,  7  Cowen,  752.        *  Hartley  v.  Moxham,  8  Ad.  &  E.  K  S.  701. 

*  In  an  action  of  trespass  for  untying  the  plaintiff's  horse  and  removing  him 
from  a  hitching  post  which  the  plaintiff  had  as  good  a  right  to  use  as  the  de- 
fendant, it  was  held  that  the  plaintiff  was  entitled  to  recover  (Bruch  v.  Carter,  3 
Vroom,  554). 

t  In  Stoughton  v.  Mott,  15  Vt.  1G3,  which  was  an  action  of  trespass  for  seiz- 


384         WKOiirGFUL  taking  of  personal  property.      §  424, 

§  423.  The  offense  may  be  committed  without  any  wrong- 
ful intention.  "Probably  one  half  of  the  eases  in  which 
trespass  de  honis  asportatis  is  maintained  arise  from  a  misap- 
prehension of  legal  rights."  ^  In  an  action  of  trespass  for 
carrying  away  the  plaintiff's  boards,  it  appeared  that  the 
defendant,  having  boards  piled  in  a  mill  yard  near  to  the 
plaintiff's  boards,  sent  his  hired  man  to  get  his  boards,  telling 
him  to  ask  the  sawyer  to  point  them  out,  and  that  the  man, 
acting  under  the  instructions  of  the  sawyer,  drew  away,  by 
mistake,  the  boards  of  the  plaintiff  with  those  of  the  de- 
fendant. It  was  held  that  the  plaintiff  was  entitled  to  re- 
cover, whether  the  fault  was  in  the  sawyer,  or  the  hired  man.^ 

§  424.  But,  in  order  to  maintain  the  action,  it  must  be 
shown  that  the  taking  was  without  the  permission  of  the 
plaintiff,  either  express  or  implied."^  Where  the  plaintiff's 
witness  testified  that  the  plaintiff  left  in  his  possession  a 
number  of  tanned  calf  skins ;  that  the  witness  had  no  au- 
thority to  sell  the  skins,  nor  did  he  do  so ;  tliat  the  defend- 
ant came  to  the  witness'  house  to  examine  them,  saying  that 
the  plaintiff  had  authorized  him  to  dispose  of  the  same  ; 
that  the  defendant  afterwards  sold  the  skins,  and  they  were 


ing  a  sloop  and  certain  arms  and  munitions  of  war,  on  board,  under  an  act  of 
Congress  which  authorized  such  seizure  when  there  Vi'as  reason  to  believe  that 
the  vessel  was  to  be  emph^yed  in  a  niilitarj'  expedition,  the  defendant's  counsel 
requested  the  court  below  to  instruct  the  jury  that  the  act  of  boarding  the  sloop 
for  the  purpose  of  ascertaining  the  character  of  the  loading  was  not  a  taking  of 
the  vessel  for  which  an  action  of  trespass  would  lie.  To  this  the  court  assented, 
and  charged  this  jury  accordingly.  It  was,  however,  held  on  appeal,  questiona- 
ble whetlier  the  judge  in  so  charging,  did  not  go  too  far. 

The  phiintiff  in  an  execution,  cannot  maintain  an  action  against  a  third  per- 
son for  taking  away  projaerty  levied  on,  when  it  appears  that  there  remained 
enough  subject  to  the  execution,  and  bound  by  the  levy,  to  satisfy  the  execution, 
and  that  the  plaintiff  had  either  released  the  residue,  or  lost  his  lien  upon  it  by 
his  own  want  of  due  care  (Marsh  v.  Vv'hite,  3  Barb.  518). 

A  party  who  takes  goods  by  trespass,  cannot  be  charged  as  the  trustee  of  the 
owner  to  whom  the  wrong  is  done  (Despatch  Line  of  Packets  v.  Bellamy  Manf. 
Co.  12  N.  Hamp.  205). 

'  Metcalf,  J.,  in  Stanley  v.  Gaylord,  1  Cush.  536. 

^  May  V.  Bliss,  22  Vt.  477 ;  but  see  'post,  §  427. 

*  An  action  of  trespass  cannot  be  maintained  against  the  clerk  of  a  ware- 
houseman for  selling  goods  stored  in  the  warehouse  by  the  advice  of  his  em- 
ployer, but  without  the  knowledge  or  consent  of  the  owner  (Stafford  v.  Mercer, 
42  Geo.  556). 


§  425.  WHAT    CONSTITUTES.  385 

taken  away  from  the  witness'  house ;  tliat  the  defendant 
brought  the  witness  eight  dollars  as  part  of  the  proceeds  of 
the  sale  of  the  sldns,  and  requested  him  to  give  the  same  to 
the  plain tiif,  which  he  did,  and  the  plaintiff  received  the 
money,  and  requested  the  witness  to  call  upon  the  defendant 
for  the  balance.  It  was  held  that,  as  the  evidence  disproved 
any  tortious  taking,  the  action  could  not  be  maintained.^ 
One  of  two  partners  made  an  assignment  of  the  stock  of  the 
firm  in  the  name  of  the  firm,  in  trust  for  the  benefit  of  the 
creditors  of  the  firm.  The  other  partner,  who  was  a  minor, 
executed  a  power  of  attorney  to  his  copartner,  authorizing 
him  to  execute  the  assignment  on  the  minor's  behalf.  The 
property  was  judiciously  disposed  of  by  the  assignee,  and 
the  proceeds  distributed  pro  rata  among  the  creditors,  the 
assignee,  who  was  a  creditor,  retaining  only  his  proportional 
part  of  the  proceeds.  The  minor,  on  coming  of  age,  dis- 
afiSrmed  the  assignment  and  power  of  attorney,  and  brought 
an  action  of  trespass  against  the  assignee  for  the  alleged  un- 
lawful taking  and  removal  of  the  property.  But  it  was  held 
that  the  action  could  not  be  maintained.^ 

§  425.  Where  goods  are  taken  by  trespass  from  a  tres- 
passer, the  owner  may  have  an  action  of  trespass  against  the 
last  taker.*  Were  it  otherwise,  and  a  tortious  taking 
changed  the  property  of  the  goods,  the  trespasser  could  pass 
a  good  title  to  a  third  person,  and  the  owner  would  have  no 
remedy  except  against  the  original  wrong-doer,^  But  if 
there  be  no  fault  on  the  part  of  the  second  taker,  he  cannot 
be  treated  as  a  trespasser.     It  is  a  general  rule  that  trespass 


'  Wellington  v.  Drew,  16  Maine,  51.  ^  Furlong  v.  Bartlett,  21  Pick.  401. 

'  Barrett  v.  Warren,  3  Hill,  348. 

"*  Where  an  officer  wrongfully  attached  a  horse,  and  while  it  was  in  his  cus- 
tody, wrongfully  attached  it  again  on  a  writ  in  favor  of  another  creditor,  it  was 
held  that  the  owner  of  the  horse  might  maintain  trespass  against  the  officer  and 
the  second  attaching  creditor  jointly  (Cox  v.  Hall,  18  Vt.  191).  Williams, 
Ch.  .J.:  "If  the  first  taking  was  wrongful,  the  plaintiff  was  still,  in  contempla- 
tion of  law,  the  possessor,  and  could  maintain  an  action  against  a  subsequent 
wrong-doer;  and  the  charge  was  a  reiteration  of  the  doctrine  that  if  a  second 
trespasser  take  goods  out  of  the  possession  of  the  first  trespasser,  the  owner  may 
maintain  trespass  agninst  such  second  trespasser,  liis  act  not  being  excusable."  " 
Vol.  I.— 25 


33G  WRONGFUL  TAKING    OF   PERSONAL  PROPERTY.        §  42G. 

will  not  lie  against  one  wLo  came  to.  the  possession  of  the 
goods  by  delivery,  and  without  any  fault  on  his  part,  al- 
though the  person  who  made  the  delivery  had  no  title,  and 
was  a  wrong-doer.-^  As  if  A.  take  the  horse  of  another,  and 
sell  it  to  B.,  trespass  does  not  lie  against  B.^ 

§  426.  As  a  general  rule,  a  bailee  of  goods  cannot  set  up 
against  his  bailor  that  a  third  person  has  a  better  title  to 
them.  But  if  the  goods  are  taken  from  the  bailee  by  au- 
thority of  law,  exercised  through  regular  and  valid  proceed- 
ings, it  will  be  a  defense  to  an  action  by  the  bailor.  The 
bailee  must  assure  himself,  and  show  the  court  that  the  pro- 
ceedings are  regular  and  valid.  But  he  is  not  bound  to  liti- 
gate for  his  bailor,  or  to  show  that  the  judgment  or  decision 
of  the  tribunal  issuing  the  process,  or  seizing  the  goods,  was 
correct  in  law  or  in  fact.^  *  Although  a  wharfinger  is  the 
agent  of  the  person  of  whom  he  receives  goo^s,  and  cannot 
dispute  the  title  of  his  principal  in  an  action  brought  by  the 
principal  against  him,  yet  this  w'ill  not  protect  the  goods 
from  an  execution  against  the  person  thus  depositing  them  ; 
and  if  they  are  taken  from  the  wharfinger  or  warehouseman 
by  lawful  process,  the  wharfinger  or  warehouseman  can  de- 
fend himself  in  a  suit  brought  against  him  by  the  owner. 
If  the  person  from  whom  the  w^harfinger  or  warehouseman 


'  Marshall  v.  Davi?,  1  Wend.  109;  Nash  v.  Mosher,  10  lb.  431;  Wilson  v. 
Barker,  4  Barn.  &  Adol.  614;  Bac.  Abr.  Trespass,  E,  2. 

''  Com.  Dig.  Trespass,  D,  B96. 

'  Bliven  v.  Hudson  River  R.  R.  Co.  35  Barb.  188. 

*  The  bailment  of  property  with  a  power  of  sale  being  a  personal  trust,  the 
bailee  has  no  authority  to  delegate  this  trust  to  another.  Hunt  v.  Douglass,  22 
Vt.  128,  was  au  action  of  trespass  against  a  deputy  sheriff  for  attaching  and 
selling  a  horse.  It  appeared  that  the  plaintiff  was  the  owner  of  a  certain  horse, 
which  he  put  intd  the  possession  of  his  brother,  to  be  used  and  sold  or  ex- 
changed by  him,  and  that  the  bailee  exchanged  the  horse  with  one  Lee  for  an- 
other horse.  Lee  agreeing  to  pay  fifteen  dollars  as  the  difference,  and  that  the 
horse  which  Lee  received  should  remain  the  property  of  the  plaintiff  until  the 
fifteen  dollars  were  paid.  It  appeared  further  that,  at  the  time  of  this  transac- 
tion between  the  bailee  and  Lee,  that  the  former  told  the  latter  that  he  might 
trade  away  the  horse  if  he  would  keep  the  security  good,  and  that  Lee  had 
traded  three  times,  and  that  the  horse  now  in  question  was  the  one  which  was 
obtained  upon  the  third  exchange.  The  fifteen  dollars  were  not  paid.  The 
county  court  having,  upon  the  foregoing  facts,  given  judgment  for  the  defendant, 
it  was  affirmed  bv  tlie  Suprem.e  Court. 


§  427.  WHAT    CO]!fSTITUTES.  387 

receives  the  goods  claims  them  by  a  void  title,  so  that  he 
cannot  lawfully  hold  them,  and  they  are  taken  by  authority 
of  law  out  of  the  custody  and  care  of  the  wharfinger,  the 
latter  may  show  this  in  excuse  for  not  delivering  them.^ 

§  427.  If  a  servant  takes  property  by  mistake,  without 
any  direction  or  authority  given  him  by  his  master  to  take 
the  particular  property  in  question,  and  there  is  no  subse- 
quent assent  or  approbation,  with  a  knowledge  of  the  tres- 
pass, on  the  part  of  the  master,  an  action  of  trespass  will  not 
lie  against  the  master  for  the  taking ;  and  his  admission  of 
the  fact  that  the  servant  had  taken  the  property,  and  oifer  of 
payment  therefor,  will  not  be  construed  into  an  assent  to,  or 
approbation  of,  the  wrongful  taking.^  Where  a  heifer  got 
into  the  possession  of  drovers  by  the  act  of  their  servant, 
without  their  knowledge  or  assent,  and  continued  in  their 
drove  without  their  knowing  that  it  was  among  their  cattle, 
it  was  held  that  they  were  not  liable  in  trespass  therefor,  un- 
less they  failed  to  exercise  usual  and  proper  precautions.^ "' 

'  Burton  v.  Wilkiuson,  18  Vt.  186. 

^  Broughton  v.  Whallon,  8  Weod.  474;  and  see  Miller  v.  Baker,  1  Mete.  27; 
but  see  ante^  §  423. 

'  Brooks  V.  Olmstead,  17  Penn.  St.  R.  24. 

*  Where  a  sheriff  places  goods  in  charge  of  a  receiptor,  and  the  receiptor  de- 
livers them  to  a  thii\i  person,  Vv'hose  servant  removes  and  leaves  them  at  a  dis- 
tance, an  action  of  trespass  may  be  maintained  against  the  servant,  although  he 
was  ignorant,  at  the  time  of  the  removal  of  the  goods,  of  the  sheriff's  interest  in 
them  (Sinclair  v.  Tarbox,  2  N.  Ilarap.  135).  This  was  an  action  of  tresjjass  for 
taking  and  carrying  away  a  sleigh  and  harness.  It  appeared  tiiat  the  plaintiff, 
being  a  deputy  sheriff,  attaclied  the  projierty,  and  delivered  it,  on  receipt,  for 
safe  keeping,  to  one  A. ;  tliat  shortly  after,  A.,  having  occasion  to  go  away,  re- 
quested liis  brother  B.  to  take  care  of  the  property  until  wanted ;  that  thereupon 
)i.  absconded  to  the  State  of  New  York;  and  that  the  defendant,  who  was  in 
Ids  employ,  drove  thither  and  left  the  property  there,  biit  was  ignorant,  at  the 
time,  of  the  plaintiff's  interest  in  it.  A  verdict  having  been  rendered  for  the 
value  of  the  property,  subject  to  further  consideration,  the  court  said:  "  On  the 
facts  of  this  case,  trover  is  the  more  usual  remedy,  and  would  certainly  have 
been  safer.  But  trespass  also  will  lie  if  a  tort  has  been  committed;  and  the 
plaintiff,  having  an  interest  in  the  slei'_'h,  had  also  an  actual,  or  the  right  to  au 
ar-tual,  possession  of  it.  In  respect  to  the  bailment,  it  may  be  conceded,  for 
the  purpose  of  this  argument,  to  be  well  settled,  that,  between  parties  to  it, 
trespass  will  not  lie  for  a  mere  non-delivery  of  the  property  bailed.  But  the  de- 
fendant was  no  party  to  the  original  bailment,  neither  was  his  employer.  And 
if  lie  had  l)een  a  party  to  it,  the  use  and  removal  of  the  sleigh  toIStew  York  were 
acts  so  foreign  to  the  nature  and  design  of  the  bailment  as  to  prevcmt  all  protec- 
tion under  it,  and  to  subject  the  person  who  thus  removed  and  left  the  sleigh,  to 
an  action  of  trespass.   This  may  not  be  on  the  ground  that  a  bailee,  in  such  case, 


388  WRONGFUL   TAKING    OF   PERSONAL  PROPBRTr.        §  429.' 

§  428.  Where  a  party  has  a  license  to  take  or  hold  goods, 
he  will  be  liable  as  a  tresj^asser  if  he  meddle  with  the  goods 
after  the  revocation  of  the  license.  A  mere  license  for  the 
purchase  of  lumber  which  is  to  be  taken  and  measured  from 
a  laro'er  bulk,  and  to  be  an  average  lot  as  to  thickness  and 
quality,  may  be  revoked;  and  if  the  purchaser  take  it  after 
such  revocation,  trespass  will  lie  against  him  therefor.^  In 
an  action  of  trespass,  for  wrongfully  attaching  the  property 
of  the  plaintiif,  it  appeared  that  some  time  after  the  attach- 
ment an  agreement  was  made  between  the  plaintiff  and  de- 
fendant, that  the  plaintiff  should  take  the  property,  and  if 
the  suit  was  not  settled  in  a  short  time  he  should  return  it 
to  the  defendant,  who  might  then  sell  it.  The  property  was 
accordingly  delivered  to  the  plaintiff,  and  afterwards  returned 
to  the  defendant  and  sold,  the  plaintiff  being  present  at  the 
sale  and  forbidding  it.  It  was  held,  that  the  plaintiff  had  a 
right  to  revoke  the  license  to  sell,  and  that  the  defendant,  by 
selling,  became  a  trespasser.®* 

2.   Creditor  obtaining  possession  of  goods  by  unlaivfid  means. 
§  429.  As  a  valid  act  cannot  be  accomplished  by  unlawful 


becomes  a  trespasser  ah  initio;  but  that  a  destruction  of  the  article  bailed,  or  a  con- 
version to  purposes  altogether  different  from  those  intended,  is  without  the  scope 
of  the  contract  of  bailment,  and  may  be  ]^rosecuted  in  the  same  way  as  if  no  bail- 
ment existed.  Tlius  it  is,  that  such  acts  of  a  bailee,  if  accompanied  by  other  cir- 
cumstances indicating  a  felonious  intent,  amount  to  larceny ;  and  every  larceny 
must  involve  a  trespass." 

'  Ockington  v.  Richey,  41  N.  Ilamp.  275. 

=  Wallis  V.  Truesdell,  6  Pick.  455. 

*  In  this  case,  the  court  said:  "It  has  been  objected  that  the  license  was  ir- 
revocable, because  it  was  founded,  on  a  sufficient  consideration,  and  ought  there- 
fore to  be  considered  as  a  valid  contract.  But  we  do  not  \-iew  it  in  that  light. 
There  was  no  sufficient  consideration  to  support  a  contract.  The  agreement  be- 
tween Truesdeli  and  the  plaintiff  was  of  no  beneSt  to  the  plaintiff,  nor  was  it 
any  damage  to  Truesdell.  He  had  no  legal  right  to  the  property  attached,  nor 
had  he  any  control  over  it.  And  if  the  agreement  had  been  made  between  the 
plaintiff  and  the  officer,  still  it  would  be  nudum  pactum;  for  it  was  the  officer's 
duty  to  accept  a  good  receipt  for  the  property;  and  if  not,  he  has  not  been  in- 
jured thereby,  nor  has  the  plaintiff  received  any  benefit.  We  think,  therefore, 
the  license  was  revocable;  and  having  been  revoked  before  the  sale,  the  sale  was 
unauthorized;  and  thereby  the  defendants  became  trespassers  ab  initio. 

It  is  no  defense  to  an  action  of  trespass  for  carrying  away  personal  property 
from  the  plaintiff's  house,  that  it  was  done  with  the  approval,  and  at  the  request, 
of  the  plaintiff's  wife,  then  living  apart  from  her  husband,  although  some  of  the 
property  belonged  to  her  before  marriage  (Schindel  v.  Schindel,  12  Md.  108). 


§  429.  CREDITOR    OBTAINING    GOODS    UNLAWFULLY.  389 

means,  whenever  such  unlawful  means  are  resorted  to,  all 
persons  actively  participating  therein  will  be  deemed 
trespassers,  and  the  law  will  interpose  to  restore  the  party 
injured  to  his  rights.*  Where  therefore  a  creditor  procured 
the  bringing  of  his  debtor's  goods  into  Massaclmsetts  by 
fraudulent  representations,  for  the  purpose  of  attaching  them 
there,  the  same  being  previously  in  New  York,  where  they 
were  not  liable  to  attachment,  it  was  held  that  both 
the  creditor  and  officer  were  trespassers,  although  the  latter 
acted  under  a  lawful  precept,  and  although  the  officer  before 
he  took  the  property  had  no  knowledge  of  the  fraudulent 
acts  of  the  creditor.^  In  Parsons  v.  Dickinson,^  unlawful 
means  had  been  employed  to  keep  the  proj^erty  of  the 
debtor  from  passing  to  the  vendee,  and  to  continue  its 
liability  to  attachment  until  the  next  day,  and  an  attachment 
was  thereupon  made;  but  it  was  held  that  an  attachment 
under  such  circumstances  was  ineffectual,  and  the-  parties 
making  it  were  trespassers.  In  Ilsley  v.  Nichols,^  the  attach- 
ment had  been  preceded  by  an  unlawful  breaking  open  of  a 
dwelling-house,  and  it  was  held  that  as  such  unlawful  means 
had  been  used  to  exj^ose  the  property  to  the  officer  holding 
the  writ,  the  attachment  was  invalid,  f 

'  Deyo  V.  Jennison,  10  Allen,  410. 

"  11  Pick.  352.  '  12  Pick.  269. 

*  A  sailor  who  had  lotlged  several  weeks  at  a  public  house,  and  also  received 
advances  of  cash  from  the  person  who  kept  it,  having  been  paid  his  wages  in 
the  presence  of  ^  the  father  of  the  publican,  went  to  the  house  of  the  latter,  and 
drinking  became  intoxicated  and  fell  asleep.  The  father  of  the  publican  in  hia 
fion's  presence,  desire .1  a  young  v.'oraan,  an  acquaintance  of  the  sa-lor,  to  take 
the  money  out  of  liis  pocket,  which  she  did,  and  laid  it  on  the  table.  It  was 
Vil  17s.  ad.  The  publican  took  it  up,  and  said  he  would  keep  it  until  the  man 
got  sober.  The  father  told  her  to  say  when  the  sailor  awoke  that  his  money 
was  lost.  The  pul)lican  said,  she  had"^  better  be  there  in  the  morning  when  he 
settled  with  the  sailor.  When  the  latter  awoke  and  asked  for  his  money,  the 
father  said  itVas  all  right  until  the  morning.  After  this,  at  the  request  of  the 
sailor,  a  pound  in  silver  was  given  to  the  young  woman  out  of  the  money,  and 
the  next  morning,  on  his  applying  for  the  remainder,  he  was  offered  2s.  and 
some  copper  as  the  balance  after  deducting  what  he  owed  the  publican  _  It  was 
held  that  an  action  of  trespass  would  lie  agsiinst  the  publican  and  his  father 
jointly,  and  that  the  sailor  was  entitled  to  recover  the  whole  amount  taken  from 
him  without  any  other  deduction  than  that  of  the  pound  afterward  given  to  the 
woman  (Peddell  v.  Kutter,  8  Car.  &  P.  337). 

t  The  plaintiff  in  an  attachment  suit  will  be  protected  oy  the  judgment, 
although   the   alfidavit   and  bond  submitted  m  the  proceedings  are  defective. 


390  WIlO^sGFUL   TAKIIs^G   OF   PERSONAL   PROPEllTY.        §  430. 

3.  Party  directing  illegal  seizure  or  sale  hy  officer. 

§  430.  It  follows  from  the  rule  to  wbicli  we  have  hereto- 
fore adverted,  as  to  the  responsibility  of  a  person  who  is 
instrumental  in  the  commission  of  a  trespass  by  another/ 
that  one  who  directs  or  causes  an  officer  to  levy  an  execution 
upon  the  property  of  a  third  person,  is  liable  therefor,  al- 
though he  does  not  otherwise  participate  in  the  ".wrongful 
act.^  G.  recovered  judgment  in  an  action  of  debt  against  D., 
and  employed  his  attorney,  to  v/hom  he  had  previously  as- 
signed the  debt  in  repayment  of  advances,  to  sue  out  execu- 
tion. The  attorney,  who  lived  at  Cheltenham,  caused  Sifi.fa. 
to  be  sued  out,  directed  to  the  sheriff  of  Buckinghamshire, 
to  levy  on  D.'s  goods,  and  the  attorney's  London  agent  in- 
dorsed on  the  writ :  "  The  defendant  resides  at  Wolverton, 
and  is  an  inn-keeper,  levy,"  tfec.  D.  was,  at  the  time,  residing 
with  his  mother-in-law  at  an  inn,  of  which  she  was  the  pro- 
prietor, at  Wolverton,  and  was  assisting  her  in  the  manage- 
ment, but  had  no  interest  in  the  premises,  or  the  goods  upon 
them.  The  sheriff,  in  execution  of  the  ji.  fa.^  seized  goods 
of  the  mother-in-law"  at  the  inn.  She  brought  trespass  against 
the  attorney,  and  obtained  a  verdict  upon  the  issues  joined 
on  pleas  of  not  guilty,  and  denial  of  her  property  in  the  house 
and  goods.  On  motion  to  enter  a  verdict  for  the  defendant, 
it  was  held  that  the  verdict  against  the  attorney,  on  the  issue 
upon  not  guilty,  was  maintainable,  the  facts  furnishing 
evidence  that  he  had  directed  the  shei'iff  to  levy  on  the 
plaintiff's  goods.^  Judson  v.  Cook,^  was  an  action  for  taking 
the  goods  of  the  plaintiff  who  was  a  sheriff,  and  who  held 
them   by  virtue  of  a  lev}^     The  defendant,  who    was  the 

He  cannot  tlierefore  be  made  liable  ns  a  trespasser  to  a  stranger  to  the  proceed- 
ings (Billings  V.  Russell,  23  Penu.  St.  R.  189). 

'  Ante,  §§  23,  24. 

"  McGuintv  v.  Herrick,  5  Wend.  240;  Percival  v.  .Tones,  2  -Tohns.  Cas.  49; 
Tavlorv.  Trask,  7  Cowen,  249;  Glover  v.  Horton,  7  Blackf.  295;  Woodbridge 
V.  Conner,  49  Maine,  353;  Stetson  v.  Goldsmith,  30  Ala.  G02;  s.  c.  31  lb.  649; 
Bruhl  V.  Parker,  2  Brevard,  40G;  IMcNeeley  v.  Iluuton,  30  Mo.  332;  Mitchell  v. 
Dubcse,  1  Rep.  Con.  Ct.  300;  WMcklitle  v.  Saunders,  6  Mour.  296;  but  sec 
Dameron  v.  Williams,  7  Mo.  138,  and  Kreger  v.  Ooborn,  7  Blackf.  74  contra. 

"  Rowles  V.  Senior,  8  Q.  B.  G77.  "  11  Barb.  642. 


§  431.  DlEECTlJS'G   ILLEGAL   SEIZURE   BY   OFFICER.  391 

president  of  a  bank,  directed  an  attorney  to  sue  a  note  be- 
lonofino*  to  the  bank,  and  lie,  actino;  under  the  instructions  of 
the  defendant,  caused  the  goods  to  be  attached  and  sold  by 
a  constable  on  an  execution  issued  on  the  judgment  obtained 
in  the  attachment  suit,  notw'ithstauding  the  previous  levy  of 
the  sheriff.  It  was  proved  that  the  defendant  knew  of  the 
previous  lev}",  and  that  although  requested  by  an  agent  of, 
the  plaintiff  to  relinquish  the  levy  on  the  bank  execution,  ho 
declined  to  do  so.  The  defendant  was  at  the  sale  and  bid  off 
some  of  the  propert)^  At  the  trial  at  the  circuit,  the  plaint- 
iff was  nonsuited.  The  Supreme  Court,  in  granting  a  new 
trial,  remarked,  that  taking  the  whole  evidence  together,  it 
made  out  a  strong^  case  connectino;  the  defendant  with  the 
conversion ;  and  that  the  fact  that  he  acted  as  the  agent  of 
the  bank,  did  not  in  the  least  diminish  his  liability."^ 

§  431.  It  has  often  been  decided,  that  if  process  be  is- 
sued without  jurisdiction,  the  party  who  causes  it  to  be 
issued  is  liable  as  a  trespasser.^  f  If  issued  by  competent 
authority,  and  regular  on  its  face,  it  may  afford  protection 
to  the  officer  for  his  acts  previously  done  under  it ;  but  none 
whatever  to  the  party.  As  to  the  latter,  it  is  as  though  the 
goods  had  been  taken   and  detained  without  process.^      In 

'  Vredenburgh  v.  Hendricks,  17  Barb.  179;  Merritt  v.  Read,  5  Denio,  352; 
Vosburgh  v.  Welcli,  11  Johns.  175;  Miller  v.  Brinkerhoff,  4  Denio,  118;  Sprague 
V.  Birciiard,  1  Wis.  457;  Stone  v.  Chambers,  1  Strobh.  117. 

'  Lyon  V.  Yates,  52  Barb.  237;  Kerr  v.  Mount,  28  N.  Y.  659;  Chapman  v. 
Dyett,  11  Wend.  31;  Smith  v.  Shaw,  12  Johns.  257;  Havden  v.  Shed,  11  Mass. 
500;  Lodrington  v.  Lloyd,  8  Adol.  &  El.  449;  Parsons  v.  Lloyd,  2  W.  Black.  845. 

*  Where  a  landlord  placed  a  warrant  of  distress  for  rent  in  the  hands  of  an 
officer  and  directed  him  to  serve  it,  and  the  officer  made  an  illegal  levy  and  sale, 
it  was  held  that  the  landlord  was  iitible  to  his  tenant  for  damages  caused  bysucli 
levy  and  sale  (Parkerson  v.  Wightman,  4  Strobh.  363). 

t  The  reversal  of  the  judgment  on  which  the  execution  issued  in  an  attachment 
suit  does  not  invalidate  the  levy  or  sale,  or  make  either  the  party  or  the  officer  a 
tresptisser.  It  merely  annuls  the  title  acquired  by  means  of  the  sale,  and  entitles 
the  owner  of  the  chattel  to  recover  it  h'om  any  one  into  v/hose  possession  it 
has  come  (Keinmiller  v.  Skidmore,  7  Lans.  161).  When,  however,  an  attach- 
ment, under  cover  of  which  goods  are  taken,  is  set  aside  for  irregularity,  it  af- 
fords no  protection  for  such  taking  to  the  creditor  who  procured  it  to  be  is- 
sued;  but  only  to  the  officer  (Wehle  v.  Butler,  43  Ilow.  Pr.  R.  5;  and  see  Lyon 
V.  Yates,  and  Kerr  agst.  Mount,  supra. 

An  action  of  trespass  may  be  maintained  against  a  deputy  clerk  who  wrong- 
fully issues  au  execution  tinder  which  goods  are  sold  (Coltraine  v.  McCain,  3 
Dcv.  308}. 


392  WRONGFUL   TAKING   OF   PERSONAL  PROPERTY.        §  432. 

Perkins  v.  Proctor/  it  was  held  that  trespass  would  lie 
against  the  assignees  under  a  commission  of  bankruptcy  sued 
out  against  a  person  not  liable  to  be  declared  a  bankrupt. 
And  where  property  of  the  defendant  in  an  attachment  suit 
was  taken  and  sold,  at  the  instance  of  the  plaintiff,  on  a 
judgment  rendered  by  a  justice  of  the  peace  in  favor  of  the 
-plaintiff,  no  writ  having  been  returned,  and  the  defendant 
not  having  appeared,  it  was  held  that  both  the  plaintiff  and 
the  justice  were  trespassers.^  When,  however,  a  person  does 
no  more  than  to  prefer  a  complaint  to  a  magistrate,  he  is  not 
liable  in  trespass  for  the  acts  done  under  the  warrant  which 
the  magistrate  thereupon  issues,  even  though  the  magistrate 
has  no  jurisdiction ;  though  if  the  complaint  is  malicious,  and 
without  probable  cause,  the  complainant  may  be  answerable 
in  another  form  of  action.^  In  Barker  v.  Stetson,*  the  de- 
fendant made  a  complaint  to  a  magistrate  under  the  statute, 
and  therein  prayed  him  to  issue  process  for  the  seizure  of  the 
plaintiff's  liquors.  The  magistrate  issued  the  process,  and 
an  officer  served  it  according  to  its  precept.  The  section  of 
the  statute  under  which  the  process  was  issued  being  uncon- 
stitutional, the  magistrate  had  no  jurisdiction ;  the  process 
was  void ;  and  the  service  of  it  was  a  trespass  upon  the 
plaintiff,  for  which  the  magistrate  and  the  officer  were  an- 
swerable. But  it  was  held  that  the  defendant  was  not  liable 
as  a  trespasser.  And  the  plaintiff  would  not  be  liable  with 
the  magistrate  for  the  issuing  of  process  without  a  sufficient 
oath — the  magistrate  being  the  proper  person  to  pass  upon 
its  sufficiency.^ 

§  432.  A  plaintiff  is  not  liable  for  the  irregular  execution 
of  his  process,  unless  he  commands  or  sanctions  it.^  If  he 
disavows  the  unlawful  seizure,  he  will  be  held  excused ;  and, 

'  2  Wils.  382.  "  Selby  v.  Platts,  3  Chand.  Wis.  183. 

'  Brown  v.  Chapman,  6  G.  B.  305;  Carrattv.  Morlev,  1  G.  &  D.  275;  1  Ad.  & 
El.  N.  S.  18;  Cooper  V.  Harding.  7  lb.  928;  West  v.  Smallwood,  3  M.  &  W.  418; 
Barber  v.  RoUinson,  1  Cr.  &  M.  330;  Chivers  v.  Savage,  5  El.  A;  Dl.  701 ;  see  aide, 
§308. 

*  7  Gray,  53.  "  Outlaw  v.  Davis,  27  111.  4G7. 

•  West  V.  Shockley,  4  Harring.  287;  Abbott  v.  Kimball,  19  Vt.  551. 


§  432.  DIRECTING  ILLEGAL   SBIZUKE   BY   OFFICER.  393 

in  the  absence  of  proof,  it  will  not  be  presumed  that  he  di- 
rected it.^  But  it  is  otherwise  when  he  permits  the  goods 
to  be  retained  for  his  benefit ;  ^  *  or  w^hen  he  refuses  to  give 
up  the  property  wrongfully  levied  upon,  although  not  pres- 
ent when  the  property  was  tahen.^  Where  goods  are  wrong- 
fully seized  under  an  attachment  against  another  person,  and 
the  owner  of  the  goods  files  an  interpleader  which  the  plaint- 
iff in  the  attachment  defends,  it  will  be  deemed  such  a  rati- 
fication, on  the  part  of  the  latter,  of  the  acts  of  the  officer,  as 
will  render  the  plaintifi:'  liable  as  a  trespasser.*  As  a  general 
rule,  in  case  of  an  irregular  sale  by  an  oflacer,  where  the  mis- 
take is  one  of  fact,  and  such  as  makes  the  officer  a  trespasser, 
and  the  party,  knowing  all  the  circumstances,  consents  to 
take  the  avails  of  the  sale ;  or  where  he  counsels  the  very 
act  which  creates  the  liability  of  the  officer,  he  is  implicated 
to  the  same  extent  as  the  officer.  When,  however,  the  party 
does  not  direct  or  control  the  course  of  the  officer,  but 
requires  him  to  proceed  at  his  peril,  and  the  officer  makes  a 
mistake  of  law  in  judging  of  his  official  duty,  whereby  he 
becomes  a  trespasser  by  relation,  the  party  is  not  affected  by 
it,  even  when  he  receives  money  which  is  the  result  of  such 
irregularity,  although  he  was  aware  of  the  course  pursued 


'  1  Chit.  PI.  7th  xim.  ed.  91,  92;  Averill  v.  Williams,  1  Denio,  501. 

"  Harrison  V.  Mitchell,  13  La.  An.  260;  Root  v.  Chandler,  10  Wend.  110; 
Prince  v.  Flynn,  2  Litt.  240 ;  Smith  v.  Felt,  50  Barb.  612 ;  Shepherd  v.  Mc- 
Quilkin,  2  W.  Va.  90;  Lewis  v.  Johns,  34  Cal.  629;  Alfred  v.  Bray,  41  Mo.  484. 

'  Cook  V.  Hopper,  23  Mich.  511. 

*  Perrin  v.  Claflin,  11  Mo.  IB;  Woolen  v.  Wright,  1  Hurl.  &  Colt.  554.  contra. 

*  Root  V.  Chandler,  mpra.,  was  an  action  of  trespass,  for  taking  two  horses 
belonging  to  the  plaintiff.  It  appeared  that  the  horses  having  been  seized  under 
an  execution  against  a  third  person,  the  creditors  of  sucli  third  person,  of  wdiom 
the  defendant  was  one,  had  a  consultation,  and  directed  the  officer  to  detain  the 
horses,  agreeing  to  indemnify  him;  and  that  the  officer,  after  keeping  them  a 
few  days,  sold  them.  It  was  held,  that  although  the  defendant  had  no  agency 
in  the  first  taking  of  the  property,  yet,  as  the  plaintiff  remained  in  the  construct- 
ive possession  of  it,  notwithstanding  the  levy  of  the  execution,  the  defendant 
was  liable  as  a  trespasser. 

Where  goods  of  a  party  are  seized  under  a  process  which  has  issued  in  a 
suit  in  which  such  party  is  defendant,  but  the  seizure  takes  place  without  the 
knowledge  or  authority,  or  in  the  name,  of  the  plaintiff  in  such  suit,  the  circum- 
stances that  the  goods  aftervv-ard  came  to  his  hands,  and  that  he.  knowing  the 
facts  connected  with  the  seizure,  refuses  to  give  them  up,  do  not  make  him  a 
trespasser  (Wilson  v.  Tummon,  12  L.  J,  N.  S.  307). 


394  WRONGFUL   TAKING   OF   PERSONAL   PROPERTY.         §  433. 

by  the  officer.  He  is  not  liable  unless  he  consents  to  the 
officer's  course,  or  subsequently  adopts  it.  He  may  always 
take  money  which  the  officer  informs  him  lie  has  legally  col- 
lected, without  assuming  the  responsihilicy  of  indorsing  the 
perfect  legality  of  the  entire  detail  of  the  officer's  official  con- 
duct in  the  matter;  and  the  fact  that  the  officer  is  compelled 
to  refund  to  the  debtor,  on  account  of  the  irregularity  of  the 
procedure,  will  not  affect  the  right  of  the  creditor  to  retain 
the  money. ^ 

§  433.  Where,  after  process  has  fulfdled  its  purpose,  the 
officer  continues  to  act  under  it  by  direction  of  the  plaintifi, 
both  the  officer  and  plaintiff  are  trespassers.^  In  Vail  v. 
Lewis,*^  the  gravamen  of  the  first  coiuit  of  the  declaration 
was,  that  the  defendants  maliciously  caused  and  procured 
the  sheriff  of  Westchester  to  execute  the  test  fi.  fa.  in  his 
hands  after  the  payment  of  the  judgment  to  the  sheriff  of 
New  York,  on  the  execution  previously  delivered  to  him.  It 
was  averred  that  the  sheriff  of  Westchester  made  his  levy  on 
the  2d  day  of  December,  which  was  after  the  execution  was 
returnable;  and  that  he  sold  on  the  lOfch  of  the  same  month. 
The  court  remarked  that  if  the  levy  and  sale  did  in  f-ict  take 
place  on  those  days,  the  sheriff  was  wholly  unauthorized ; 
and  if  the  defendants  caused  and  procured  the  proceedings, 
nothing  could  be  clearer  than  that  they  were  all  trespassers.* 


'  Hyde  v.  Cooper,  28  Vt.  552,  Redfield,  Ch.  J. 

*  Collins  V.  Waggoner,  Breese,  2G. 
=>  4  Johns.  450. 

*  In  Vail  V.  Lewis,  S'lprn,  the  second  and  third  counts  of  the  declaration  stated 
the  issuing  of  two  executions — one  to  tlie  sheriff  of  New  York,  and  one  to  the 
sheriff  of  Westcliester.  The  ground  of  complaint  was,  that  after  payment  of 
the  judgment  the  defendants  were  bound  to  have  countermanded  the  service  of 
the  execution  delivered  to  the  sheriff  of  Westchester,  so  as  to  have  prevented 
the  plaintilf's  goods  from  being  levied  on  and  sold ;  and  that  the  de.'endants, 
maliciously  intending  to  injure  the  plaintiff,  did  not  countermand,  and  that  the 
sheriff  of  Westchester  did  afterwards  sell  the  plaintiff's  goods.  Held,  that  as 
after  the  return  of  the  execution  its  force  was  spent,  and  the  defendants  had 
therefore  no  re:isou  to  api)rehend  that  the  sheriff  would  proceed  upon  it,  they 
were  under  no  legal  or  moral  obligation  to  countermand  it. 

The  recei])t  by  a  person  acting  in  an  official  capacity — 8.  g.,  a  county  treas- 
urer— of  money  collected  l)y  virtue  of  a  process  issued  by  him,  after  the  return 
day,  will  not  make  him  a  trespasser,  unless  he  had  notice  that  the  money  was 
coliected  after  the  return  day  (Van  Rensselaer  v.  Kidd,  6  N.  Y.  11.  331). 


§  431.  DIRECTING   ILLEGAL    SEIZURE   BY   OFFICER.  395 

§  434,  In  order  to  render  tlie  party  jointly  liable  with 
the  officer,  it  must  appear  that  they  both  participated  in  the 
wrongful  act.  *  A.,  having  wrongfully  sued  out  an  attach- 
ment against  B.,  directed  the  sheriff  to  levy  it  on  one-half  of 
a  boat  and  cargo  which  B.  and  C.  owned  jointly.  The  sheriff 
took  the  whole  boat  and  cargo,  and  forbade  C.  interfering 
with  them,  A.'s  son  being  present  at  the  time.  It  was  held, 
in  an  action  of  trespass  against  the  sheriff  and  A.  jointly,  that 
a  joint  verdict  could  not  be  rendered  against  them  ;  A.  not 
being. liable  for  the  sheriff's  acts  in  seizing  properly  upon 
which  no  levy  was  directed;  and  the  sheriff  not  being  liable 
for  A.'s  trespass  in  suing  out  the  attachment,  or  directing  a 
levy  on  B.'s  property.^  In  Stoughton  v.  Mott, ^  which  was 
an  action  of  trespass  for  seizing  a  sloop,  and  certain  arms  and 
munitions  of  war  on  board  of  the  same,  under  an  act  of  Con- 
gress which  authorized  such  seizure  when  there  was  reason 
to  believe  that  the  vessel  was  to  be  employed  in  a  military 
expedition,  the  court  was  requested  to  charge  that  if  the 
manner  of  boarding  the  vessel  amounted  to  a  taking,  yet  that 
the  defendant  was  not  responsible  unless  he  united  or  partic- 
ipated in  the  order  for  such  taking.  The  instruction  Vv^as  in 
substance,  that  if  the  defendant  knew  of  the  intention  to  take 
the  sloop,  and  voluntarily  assisted  with  his  boat,  he  was,  in 
contemplation  of  law,  a  party  and  principal  in  the  trespass. 
The  Supreme  Court  held,  that  in  the  last  named  particular, 
the  charge  was  correct ;  it  being  such  an  invasion  of  the  prop- 
erty of  the  plaintiff  as  would  amount  to  a  trer[)as3,  and  for 
which,  unless  justified,  the  defendant  was  liable.  Where 
there  is  but  one  taking  of  personal  property  by  an  officer 
upon  separate  writs  of  attachment,  sued  out  by  two  creditors 
against  the  same  debtor,  the  taking  will  be  deemed  the  joint 

'  Clay  V.  Saudefer,  12  B.  Mon.  334.  =■  15  Vt.  1G2. 

*  A.  and  B.,  tlie  defendants,  went  together  to  the  house  of  the  plaintiff's 
raotlier.  and  A.  seized  there  a  sum  of  money  beloniying  to  the  plaintiff.  There 
was  some  evidence  of  A.  and  B.  Iiaving  gone  with  the  intent  to  get  the  money, 
but  tlicre  was  no  evidence  tliat  P>.  went  into  the  house.  They  subsequently  paid 
the  money  into  a  hank  to  their  joint  accoun*-.  It  was  held  that  the;  pi:Mntifr 
migiit  waive  the  trespass  and  maintain  an  action  for  money  had  and  received 
against  the  two  defendants  (Neate  v.  Harding,  80  L.  J.  350). 


390  WRONGFUL   TAKING   OF   PERSONAL  PROPERTY.  §  435. 

act  of  tlie  creditors  in  an  action  of  trespass  brought  against 
them  and  the  officer  for  the  taking ;  but  either  of  the  defend- 
ants would  be  at  liberty  to  dispros^e  any  concern  on  his  part 
in  the  transaction,  or  to  show  that  the  attachments  were 
made  at  different  times.  ^  If  a  party  turn  out  property  to  an 
officer,  and  direct  him  to  take  it,  and  an  action  is  brought 
against  him  and  tlie  officer  for  taking  the  property,  he  can- 
not set  up  in  justification,  that  he  acted  in  aid  or  assistance, 
or  by  command  of  the  officer.  To  entitle  him  to  do  so,  there 
must  have  been  either  a  request  from  the  officer,  or  it  must 
appear  that  aid  or  assistance  was  necessary,  from  which  a 
request  may  be  implied.  ^ 

§  435.  The  act  of  an  agent  within  the  scope  of  his  au- 
thority, in  causing  the  wrongful  seizure  of  personal  property, 
will  be  deemed  the  act  of  his  principal.^  A  direction  by 
the  attorney  to  the  sheriff  to  take  tlie  goods  of  a  third  per- 
son, under  a  writ  of  execution,  is  of  this  character,  and  will 
render  the  client  liable  in  trespass  therefor.*  *     Where  the 


•  Ellis  V.  Howard,  17  Vt.  330;  Welile  v.  Butler,  43  How.  Pr.  R.  5,  referring 
to  Creed  agst.  Hartmaun,  29  N.  Y.  591,  affi'g  s.  c.  8  Bosw.  123;  Kasson  agst. 
The  People.  44  Barb.  847. 

"  Merrill  v.  Near,  5  Wend.  237. 

^  Mills  V.  Dawson,  Peake's  Add.  Cas.  59;  ante,  §  49. 

'  Jarman  v.  Hooper,  1  Dowl.  &  L.  769;  13  L.  J.  N.  S.  63;  8  Jur.  127. 

*  The  approbation  by  a  superior  of  a  trespass  committed  by  his  inferior,»ren- 
ders  the  superior  a  trespasser.  lu  Van  Brunt  v.  Schenck,  13  Johns.  414.  the 
defendant  was  surveyor  of  the  port  of  New  York,  and  was  sued  for  seizing  a 
schooner  called  the  Nancy.  A  witness  for  the  defendant  testitied  that  he  seized 
the  Nancy  for  a  breach  of  the  embargo  laws,  and  immediately  reported  the 
seizure  to  the  defendant,  who  approved  of  what  he  had  done.  This,  the  Supreme 
Court  said,  was  a  complete  ratification  and  adoption  of  the  act  of  seizure,  and 
])ut  the  defendant  in  the  same  situation  as  if  he  had  himself  made  the  seizure. 
Tlie  defcjidaut  had  an  interest  in  the  seizure.  Had  the  schooner  been  condemned, 
he  v.'ould  have  been  entitled  to  a  part  of  the  forfeiture.  The  defendant,  while 
the  schooner  was  under  seizure,  had  used  her  to  transport  his  goods  from  Hurl 
Gate  to  New  York.  In  Bishop  v.  Viscountess  Montague,  Cro.  Eliz.  824,  the 
defendant's  bailiff  took  five  oxen  as  for  heriots  due  to  the  defendant,  when  there 
was  not  any  due,  without  any  command  from  the  defendant;  but  she  agreed 
thereto,  and  converted  the  oxen  to  her  own  use.  Two  of  the  judges  held  that 
she  was  liable  in  trespass,  but  not  in  trover,  and  the  other  two  judges  held  that, 
slie  was  liable  in  trespass  or  trover.  In  that  case,  a  trespass  was  committed,  and 
the  property  taken  and  delivered  to  the  defendant.  She  accepted  the  property, 
and  converted  it  to  her  own  use — property  which  her  baililT  had  wrongfully 
taken  for  her;  and  she  thus  affirmed  his  act.  But  if  a  person,  on'heariug  that  a 
horse  had  been  taken  from  a  neighbor,  should  say  "I  am  glad  of  it;  I  wish  two 


§  435.  DIRECTING   ILLEGAL   SEIZURE   BY   OFFICER.  ,397 

proj^erty  of  a  third  person  is  wrongfully  sold  under  an  exe- 
cution, the  sureties,  in  the  bond  of  indemnity  wliicii  is 
given  to  tlie  sheriff  to  procure  the  sale,  are  liable  as  tres- 
passers;^ on  the  ground  that,  as  the  bond  contemplates  the 
sale,  it  is  a  virtilal  request  to  the  sheriff  to  make  it,  and  that 
what  the  officer  does  is  in  effect  done  under  the  direction, 
and  with  the  advice  and  concurrence,  of  the  sureties.'^  But 
the  liability  would  not  extend  to  the  scrivener  who  drew  the 
bond.*  When  a  creditor  executes  a  bond  of  indemnity  to 
the  officer  after  a  wrongful  levy,  he  is  a  joint  trespasser  with 
the  officer  as  to  all  that  is  clone  with  the  property  afterward.'^ 
But  it  is  otherwise  of  a  third  person  who  participates  in  the 
enjoyment  of  personal  proj)erty  wrongfully  taken,  but  with- 
out exercising  any  control  over  it,  or  over  the  wrong-doer. 
In  Hubbard  v.  Hurit,^  which  was  an  action  of  trespass  for 
taking  a  horse   and  wagon,  it  appeared  that  the  horse  and 


horses  had  been  taken  instead  of  one, "  he  would  not  thereby  make  himself  a 
trespasser.  / 

In  Bacon's  Ab lid gment — Trespass— G,  1 — it  is  said:  "If  J.  S.  agree  to  a 
trespass  which  has  been  committed  by  J.  N.  for  his  benefit,  this  action  lies 
against  J.  S.,  althoi;gh  it  was  not  done  in  obedience  to  his  command,  or  at  his  re- 
quest." So,  in  Com.  Dig.  Trespass,  c.  1.  it  is  said  "  that  trespass  lies  against  him 
who  afterwards  assents  to  a  trespass  done  for  his  use  or  benefit,  though  not  privy 
at  the  time  of  doing  it."  But  "if  he  assents  to  the  act  of  his  servant  in  seizing 
goods,  he  will  be  a  trespasser  for  misusing  tlie  goods  in  seizure,  though  not  i)rivy 
to  the  misusage."  In  Gibson's  Case,  Lane,  90,  two  or  three  strangers,  affirming 
that  they  were  servants  of  Gibson,  seized  the  plaintiff's  goods;  and  it  was  held, 
that  "  if  they,  as  servants  to  Gibson,  without  his  precedent  appointment,  did  seize 
the  plaintiff's  goods,  and  the  said  Gibson  approved  them  to  be  seized,  although 
his  servants,  without  his  consent,  abuse  the  goods,  yet  Gibson  shall  be  trespasser 
ab  initio." 

'  Wetzell  V.  Waters,  18  Mo.  396;  Murray  v.  Ezell,  3  Ala.  148. 

"  Davis  V.  Newkirk,  5  Denio,  92. 

'  Lovejoy  v.  Murray,  3  Wallace,  1.  *  41  Vt.  376. 

*  Upon  the  same  jDrinciple  which  shields  the  attorney  who  simply  conveys  to 
the  officer  the  instructions  of  his  clients,  where  the  party  directing  the  seizure 
finds  it  convenient  to  empower  his  attorney  to  execute  the  instrument  of  in- 
denmity  in  his  name  and  behalf,  as  his  agent,  the  attorney  so  executing  it 
as  agent  will  not  be  a  partj'  to  the  seizure,  so  as  to  make  him  a  trespasser  if  it 
turn  out  to  be  unwarranted.  The  act  of  executing  the  bond  as  attorney  would 
be  harmless,  provided  he  acted  under  sufficient  authority  from  his  principals. 
In  Ford  agst.  Williams,  13  N.  Y.  R.  577,  the  question  arose,  whether  the  fact 
that  the  attorney  used  a  seal  when  he  had  no  right  to  do  so,  and  when  that  cir- 
cumstance did  not  impair  the  contract  which  he  made  (the  contract  being  the 
preci.se  one  which  he  was  authorized  to  make),  so  changed  his  relation  to  the 
seizure  as  to  render  him  liable  as  a  party  aiding  or  abetting  its  commission;  and 
it  was  held  that  it  did  not. 


398  WRONGFUL   TAKING   OF   TBRSOXAL   PEOPEKTY.         §  435. 

wagon  were  hired  by  one  Quiraby  to  go  to  Barton  ;  that  he 
invited  tlie  defendant  to  ride  with  him;  and  that  he  drove 
"beyond  Barton  to  Newport,  where  he  left  the  team.  At  the 
trial  of  the  cause  in  the  court  below,  the  court  were  re- 
quested by  the  plaintiff  to  instruct  the  jury  that  "if  they 
found  that  Quimby  hired  the  team  to  go  to  Barton,  and  no 
further,  and  so  informed  the  defendant,  that  when  the  de- 
fendant went  with  Quimby  in  said  team  from  Barton  to 
Newport,  he  became  equally  a  trespasser  with  Quimby."  The 
court  refused  so  to  instruct,  lait  charged  that  "though  the 
defendant  knew  that  Quimby  hired  the  team  to  go  to  Bar- 
ton, and  no  further,  still  if  he  merely  rode  from  Barton  by 
invitation  of  Quimby,  and  exercised  no  control  over  the 
team,  he  would  not  be  liable ; "  and  this  instruction  was  sus- 
tained on  appeal.'"'' 


*  In  Hubbard  v.  Hunt,  sripra,  the  Supreme  Court,  in  sustaining  the  instruc- 
tion, said:  "The  plaintift's  request  goes  upon  the  ground  that  tlie  fact  that  the 
defendant  merely  rode  \vith  Quimby,  with  knowledge  that  Quimby  hired  the 
team  to  go  to  Barton,  and  no  further,  made  the  defendant  a  trespasser,  even 
though  he  exercised  no  control  over  the  team  or  Quimby.  This  proposition  of 
the  plaintiff  cannot  be  sustained  by  the  authority  of  any  well  considered  case, 
,nor  upon  principle.  To  constitute  the  defendant  a  trespasser,  it  was  not  neces- 
sary for  the  ])laintiff  to  prove  that  the  defendant  had  any  knowlege  or  informa- 
tion as  to  the  terms  of  the  bailment  of  the  team  to  Quimby.  The  question 
whether  the  defendant  was  liable  depended  upon  his  own  acts  in  respect  to  the 
team,  and  not  on  his  information  as  to  whether  Quimln^  had  a  right  to  go  with 
the  team  from  Barton  to  Newport.  Suppose  that  Quimby  had  overtaken  the 
defendant  just  after  he  left  Barton  for  Newport,  and  invited  him  to  ride,  saying 
to  him  that  he  hired  the  team  to  go  only  to  Barton,  but  had  concluded  to  go  on 
to  Newport,  and  the  defendant  had  accepted  the  invitation,  ridino- with  Quimby. 
but  exercising  no  control  over  the  team;  it  would  be  a  very  harsh  rule  to  hold 
that  riding  with  Quimby  under  such  circumstances,  either  with  or  without 
knowledge  that  Quimby  would,  by  going  to  Newport,  exceed  his  authority  as  to 
the  use  of  the  team,  constitute  the  (iefendant  a  trespasser.  Again,  suppose  that 
Quimby  had  told  the  defendant  that  he  (Quimby)  hired  the  team  to  go  to  Bar- 
ton, and  from  that  place  to  Newport,  and  the  defendant  had.  in  going  from 
Barton  to  Newport,  exercised  control  over  the  team,  he  would  be  a  trespasser,  if 
the  use  of  the  team  from  Barton  to  New[)ort  was  not  authorized  by  the  owner, 
notwithstanding  his  ignorance  of  the  fact  that  Quimby  hired  the  team  to  go  to 
Barton,  and  no  further.  The  words  in  the  charge,  'if  the  defendant  merely 
rode  from  Barton,  by  invitation  of  said  Quimby,  and  exercised  no  control  over 
the  team,  he  would  not  be  liable,'  cover  the  whole  ground.  They  made  the 
plaintiff's  right  of  recovery  depend  on  the  finding  of  the  jury,  that  the  defend- 
ant did  exercise  control  over  the  team ;  and  from  the  charge  the  jui-y  must  have 
understood  that  if  they  found  that  the  defendant,  by  his  acts  or  declarations, 
either  directly  or  through  Quimby,  in  respect  to  the  team,  did  exercise  control 
over  it,  the  plaintiff  would  be  entitled  to  recover.  The  jury  failing  to  find  such 
fact,  the  defendant  was  entitled  to  their  verdict." 


§  437.  DIRECTING    ILLEGAL   SEIZURE   BY    OFFICER.  39!) 

§  436.  A  mere  purchaser  at  a  sheriff's  sale,  of  personal 
property  tortiously  levied  on,  under  an  execution  against 
another,  is  not  responsible  in  trespass  for  the  wrongful  act  of 
the  sheriff':  his  purchase  not  in  itself  making  liini  a  j^artici- 
pant  in  the  wrongful  seizure,  or  a  trespasser  by  relation.  ^ 
Where  a  part  of  a  quantity  of  saw  logs  were  wrongfully 
levied  upon,  and  tlie  logs  aft(3rward  sold  on  the  execution, 
without  distinguishing  which  part,  and  the  buyer  neither 
took  possession,  nor  assumed  any  dominion  or  control  over 
the  property,  although  he  gave  his  note  for  the  amount  of 
the  sale,  which  was  not  due  when  the  action  was  brought, 
it  was  held  that  trespass  would  not  lie  against  the  officer  and 
buyer.  ^  '^ 

§  437.  A  person  who  sues  out  a  void  process  of  attach- 
ment, and  causes  it  to  be  levied  upon  the  property  of  another, 
becomes  liable  for  all  of  the  injury  that  results  therefrom,  ^f 
In  Kerr  v.  Mount,'*  which  was  an  action  for  the  illegal  seiz- 
ure under  an  attachment  of  goods  belonging  to  the  plaintiff*, 
counsel  for  the  defendant  contended  that  if  the  seizure  were 
considered  to  be  illegal,  and  an  act  of  trespass  on  the  part  of 
the  defendant,  still  the  injury  to  the  property,  by  the  negli- 
gence of  the  sheriff's  officer,  was  not  chargeable  to  the  de- 
fendant, but  only  to  the  sheriff;  that  the  defendant,  by  pro- 

'  Talmadge  v.  Scudder,  38  Penn.  St.  R.  517;  Jaues  v.  Martin,  7  Vt.  93. 

-  Coukey  v.  Amis,  13  Ind.  260. 

^  Peak  V.  Lemon,  1  Lansing,  295;  Lyon  v.. Yates,  52  Barb.  237. 

"  28  N.  Y.  659. 

*  When  property  is  unlawfully  sold  under  an  execution,  neither  the  official 
character  of  the  vendor,  nor  the  publicity  of  the  sale,  will  legalize  it.  But  sales 
of  property  authorized  by  law,  will  be  uplield,  notwithstanding  irregularities  in 
the  proceedings.  Public  policy  requires  that  the  innocent  purchaser  sliould  not 
suffer  by  the  misconduct  of  an  officer  executing  a  legal  precept  within  his  author- 
ity and  jurisdiction  (Wheelwright  v.  Depevster,  1  Johns.  471 ;  Carter  v.  Simp- 
son, 7  lb.  535;  Saltus  v.  Everett,  20  Wend.  267;  Com.  v.  Kennard,  8  Pick.  133; 
Cooper  v.  Chitty,  1  Burr.  20 ;  Syrpouds  v.  Hall,  37  Maine,  354). 

t  As  the  issuing  of  an  attachment  is  a  judicial  proceeding,  it  has  been  held 
that  trespass  will  not  lie  against  a  party  for  causing  an  attachment  to  be  issued 
in  a  suit  on  a  debt  not  payable  until  after  the  commencement  of  the  action  (Ivy 
v.  Barnhartt,  10  Mo.  151).  An  action  cannot  be  maintained  for  maliciously 
•suing  out  an  injunction  until  the  final  disposal  of  the  injunction,  or  until  the 
suit  in  whicli  it  was  sued  out  is  terminated  (Tatum  v.  Morris,  19  Ala.  302). 


4v00  WRONGFUL  TAKII^G  OF  PERSONAL  PROPERTY.        §  438. 

curing  the  process  and  placing  it  in  the  hancTs  of  the  officer, 
became  responsible  only  for  conduct  on  the  part  of  the  officer, 
which  he  would  have  had  a  right  to  pursue,  if  the  process 
had  been  valid ;  that  the  defendant  did  not  direct  or  counte- 
nance the  culpable  negligence  and  misconduct  by  which  the 
property  was  injured,  but  only  the  seizure  of  it,  and  the 
keeping  of  it  securely  and  carefully;  that  if  he  had  only 
done  this,  the  property  would  have  been  returned  to  the 
plaintiff  in  the  same  state  it  was  in  when  seized,  and  the 
damages  would  have  been  nominal.  It  was  held,  however, 
that  the  officer  in  such  case,  being  the  agent  or  servant  of  the 
party  in  whose  favor  the  process  was  issued,  the  party  was 
clearly  liable  for  any  injury  to  the  goods  caused  by  the  neg- 
ligent or  careless  acts  of  the  officer  while  such  goods  were  in 
his  possession, 

§  438.  Where  goods  wrongfully  levied  upon,  are  sold  in 
consequence  of  indemnity  executed  to  the  officer  by  a  subse- 
quent execution  creditor,  the  latter  will  be  liable  in  trespass 
for  the  full  value,  notwithstanding  the  proceeds  of  the  sale 
went  to  satisfy  the  first  execution.^*  If  the  party,  after 
causing  the  wrongful  seizure  of  goods,  again  causes  the  seiz- 
ure of  the  same  property  upon  process  that  is  valid,  and 
regular,  it  does  not  purge  the  original  wrong,  nor  go  in  miti- 
gation of  damages.  By  procuring  a  sale  on  legal  process,  of 
property  wrongfully  taken,  the  wrong-doer  cannot  be  better 


'  Weber  v.  Ferris,  2  Daly,  404 ;  37  How.  102. 

*  In  Weber  V.  Ferris,  supra,  the  court  said  :  "The  defendants  as  indemnitors 
and  directors  of  the  sheriff,  are  liable  as  original  trespassers.  There  is  nothing 
in  the  point  that  the  goods  had  been  previouslj^  levied  upon  under  a  prior  execu- 
tion. That  was  a  mere  formal  and  techuical  levy,  which  the  officer  would  not 
have  pressed  without  an  indemnity.  It  was  made  in  the  ordinary  routine  of 
duty  without  instructions  from  the  plaintiff  in  the  execution.  The  seizure  and 
sale  of  the  goods,  and  their  consequent  loss  to  the  plaintiff,  resulted  from  the 
special  instructions,  and  indemnity  given  upon  their  execution,  by  the  present 
defendants.  The  application  of  the  proceeds  of  the  trespass  was  immaterial,  and 
the  fact  that  they  went  to  satisfy  the  first  execution,  did  not  tend  to  mitigate 
the  damages.  The  trespass  consisted  in  the  seizure  of  all  the  property,  and  the 
defendants,  as  directors  and  indemnitors,  are  liable  for  its  full  value.  If  they 
were  unwilling  to  assume  so  great  a  responsibility,  the  particular  part  of  tlv 
property  upon  which  a  levy  was  to  be  risked,  should  have  been  pointed  out  and 
separated." 


§§  439,  440.  EIGHT   OF   ONYNER   TO   RETAKE   GOODS.  401 

• 

off  than  he  would  have  been  if  he  had  offered  to  restore  the 
property  to  the  owner.  But  no  tender  will,  at  common  law, 
either  bar  an  action  for  a  tort,  or  take  away  the  right  to  full 
compensation.  -^ 

4.  Higlit  of  O'wner  of  goods  to  retalm  them. 

8  439.  It  is  a  o-eneral  rule  that  the  owner  of  broods  which 
have  been  wrongfully  taken,  may,  so  long  as  their  identity 
can  be  established,  lawfully  repossess  himself  of  them  where- 
ever  they  can  be  found ;  ^  and  where  timber  was  wrongfully 
put  into  the  frame  of  a  boat,  it  was  held  that  the  owner 
might  take  possession  of  it,  without  being  liable  as  a  tres- 
passer.^ But  the  recaption  must  be  made  in  a  peaceable 
manner.*  If  done  with  a  breach  of  the  peace,  the  party 
would  be  answerable  criminally.  The  riot  or  force  would 
not,  however,  subject  the  owner  of  the  chattel  to  a  restora- 
tion of  it ;  ^  nor  to  an  action  of  trespass,^  unless  the  force  was 
excessive. 

§  440.  Where  a  purchaser  of  personal  property  obtains 
it  from  the  owner  by  falsehood  and  fraud,  he  acquires  no 
right  to  it,  and  the  seller  may  pursue  him  and  retake  the 
property,  using  no  more  force  than  is  necessary  for  that 
purpose ;  and  if  the  purchaser  resists  the  retaking,  he  be- 
comes the  aggressor;  and  the  seller  may  employ  such  ad- 
ditional force  as  is  required  to  regain  the  property.'''  As 
between  the  owner  and  the  person  thus  obtaining  possession, 
or   between  the  owner   and  the  existing  creditors  of  such 


'  Otis  V.  Jones,  21  Wend.  394;  Hanmer  v.  Wilsey,  17  lb.  91;  Higgins  v. 
Whitney,  24  lb.  379;  post,  §  445. 

''  Rogers  v.  Fales,  5  Pcnn.  St.  R.  154;  ante,  §  1G7. 

'  Burris  v.  Johnson,  1  J.  J.  Marsh.  19G. 

^  Barnes  v.  Martin,  15  Wis.  240;  Wilson  v.  Hooper,  12  Vt.  C55;  Beecher  v. 
Parmele,  9  lb.  35G;  Dustin  v.  Covvdry,  23  lb.  631;  Mussey  v.  Scott.  32  lb.  82: 
Sampson  v.  Henry,  11  Pick.  379;  Shipman  v.  Horton,  17  Conn.  481;  Gregory  v. 
Hill,  8  Term  R.  299 ;  Kunkie  v.  State,  33  Ind.  220. 

"  Hyatt  V.  Wood,  4  Johns.  150. 

«  Mills  V.  Wooters,  59  111.  234. 

'  Hodgeden  v.  Hubbard,  18  Vt.  504. 

Vol.  I. -26 


402  WRONGFUL  TAKING   OF  PERSONAL  PROPERTY.         §  441. 

person,  no  property  would  pass  out  of  the  real  owner,  and 
Le  might  reclaim  it  as  against  such  person  or  his  creditors.^ 

§  441.  Where  goods,  which  are  exempt  from  levy  and 
'sale,  are  taken  on  execution,  the  owner  may  recover  posses- 
sion of  them  peaceably ;  and  after  he  has  done  so,  it  will  be 
trespass  in  the  officer  to  retake  them,  and  assault  and  bat- 
tery, to  retake  them  with  force.^  So  where  a  public  officer 
attaches  the  goods  of  one  person,  upon  process  against  an- 
other, and  the  true  owner  afterward  peaceably  obtains  pos- 
session of  them,  and  the  officer  brings  trespass  for  such  taking, 
the  defendant  may  show  his  right  and  defeat  the  action."  * 


'  BufBngton  v.  Gerrish,  15  Mass.  156;  Badger  v.  Phinney,  lb.  359. 

'  Sims  V.  Reed,  12  B.  Mon.  51.  =  Merritt  v.  Miller,  13  Vt.  416. 

*  "To  reject  such  a  defense,  and  thus  permit  the  plaintiff  to  recover  the  vakie 
of  the  property,  when  he  is  confessedly  liable  to  refund  that  same  money  to  the 
defendant,  in  an  action  brought  by  him  against  the  plaintiff  for  the  original  tak- 
ing, if  the  facts  now  offered  to  be  shown  shoiikl  be  established,  would  lead  to 
unnecessary  circuity  of  action.  Such  a  course  too,  would  involve  the  novel  con- 
tradiction and  absurd  impropriety  of  deciding  the  same  question  of  i^roperty  in 
a  civil  action  between  the  same  parties  in  modes  wholly  irreconcilable,  as  either 
one  or  the  other  of  the  parties  happened  to  be  plaintiff"  or  defendant  "  (Merritt  v. 
Miller,  svpra,  per  Redfield,  J.). 

But  one  of  two  joint  owners  of  personal  property  has  no  right  to  take  it 
forcibly  from  an  officer  who  has  attached  it  on  legal  process  against  the  other 
joint  owner;  and  if  he  do  so,  the  officer  may  maintain  trespass  against  him  there- 
for (Whitney  v.  Ladd,  10  Vt.  165).  By  tlie  court :  "  If  the  joint  owner  may  re- 
take from  the  officer,  he  may  resist  the  officer  in  taking  at  all.  This  would 
practically  deny  the  power  of  attachment  of  the  property  on  one  owner's  debt. 
To  say  that  an  attachment  can  be  made,  and  the  property  still  left  or  permitted 
to  go  back  into  the  possession  and  control  of  a  copartner,  would  enable  him  to 
sell  each  article  to  as  many  different  purchasers  as  he  could  divide  it  into  parts, 
and  to  sell  the  whole,  in  the  entirety,  such  purchasers  having  no  notice  of  the 
attachment,  and  thus  put  it  utterly  beyond  the  reach  of  the  officer  or  attaching 
creditor,  or  the  purchaser  under  the  officer's  sale  to  follow  it;  and  if  it  could  ])e 
followed  into  third  persons'  hands,  they  would  hold  it  as  joint  owners  when  they 
purchased  the  whole  in  good  faith.  It  is  impossible  to  hold  that  the  interest  of 
one"  joint  owner  of  personal  property  can  betaken  and  sold  on  his  individual 
debt,  consistently  with  our  laws,  without  holding  that  the  possession  by  the  of- 
ficer, is  paramount  to  all  others.  The  whole  weight  of  the  argument  for  the  de- 
fendant is  founded  on  this,  that  the  attaching  officer  takes  only  the  interest  and 
possession  of  one  joint  owner;  and,  as  at  law,  one  joint  owner  may.  at  any  time, 
take  the  possession  from  the  other,  it  is  therefore  concluded  he  may  take 
it  from  the  officer;  and  it  would  necessarily  follow,  if  the  property  were  co- 
partnership effects  in  trade,  he  could  continue  to  sell  to  customers,  until  all  was 
sold.  This  is  quite  plausible;  but  in  truth,  the  officer  is  not  the  keeper  for  the 
partner  whose  interest  he  takes.  He  is  keeper  for  the  law;  and  other  interests 
are  involved  besides  the  owner's,  with  which  the  right  of  recapture  is  inconsist- 
ent, and  therefore  superseding  that  right.  When  a  man  conjoins  his  interest 
with  another  in  the  ownership  of  personal  chattels,  his  right  of  possession  is 
necessarily  subject  to  this  paramount  right  of  the  law." 


§  442.  RIGHT   OF   OAYXEE  TO  RETAKE   GOODS.  403 

§  442.  Upon  a  conditional  sale  of  goods,  the  seller  may, 
upon  forfeiture  of  the  condition,  lawfully  repossess  himself 
of  them.  Where  a  cow  was  sold  on  condition  that  if  the 
buyer  should  pay  for  her,  she  was  to  be  his,  otherwise  to 
remain  the  property  of  the  seller,  and  the  buyer  took  the 
cow  and  kept  her  three  or  four  years,  and  paid  part  of  the 
price,  but,  upon  being  requested,  ueglected  to  pay  the  residue, 
and  the  son  of  the  vendor,  by  his  direction,  drove  the  cow 
back,  it  was  held  that  the  son  w^as  not  liable  in  trespass 
therefor.^  * 


»  West  V.  Bolton,  4  Vt.  558. 

*  In  this  case  the  court  said:  "The  plaintiff  having  failed  to  fulfil  the  con- 
ditions on  the  performance  of  which  he  was  to  have  the  property,  all  his  claim 
at  law  was  gone.  Whether  he  had  any  equitable  right  is  not  here  the  matter 
in  dispute.  The  owner  might  retake  the  property  again,  and  divest  the  plaintiff 
of  possession,  and  would  not  be  guilty  of  any  trespass  in  so  doing.  The  perform- 
ance of  the  condition  was  neither  rescinded  or  waived,  but  insisted  on  ;  and  it  was 
in  accordance  with  the  contract  that  the  owner  proceeded  to  take  the  property, 
into  his  possession.  As  the  plaintiff  had  not  performed  the  condition  precedent 
on  the  performance  of  which  the  property  was  to  pass,  the  jury  was  rightly 
directed,  that  the  facts,  if  believed,  entitled  the  defendant  to  a  verdict." 

Earl  sold,  by  conditional  sale,  an  old  wagon  to  Mclntyre,  reserving  title  to 
himself  till  Mclntyre  should  pay  for  it.  Mclntyre  took  it  into  his  possession 
and  use.  and  made  extensive  repairs  upon  it.  In  its  improved  condition,  it  was 
sold  or  turned  out  by  Mclntyre  to  Cliild  &  Benton,  at  a  specified  price,  to  go  in 
payment  upon  a  subsisting  indebtedness  of  Mclntyre  to  them.  Very  soonafter 
this  transaction,  Mclntyre  not  having  paid  Earl  for  the  wagon,  Allen,  a  deputy 
sheriff,  took  the  wagon  by  direction  of  Earl,  upon  a  writ  in  his  favor  against 
Mclntyre,  and  sold  the  same  upon  execution  issued  upon  a  judgment  recovered 
by  Earl,  in  pursuance  of  said  attachment.  At  the  time  of  the  attachment 
Mclntyre  owed  Earl  not  only  for  the  wagon,  but  a  considerable  sum  beside,  as 
the  balance  of  current  accounts  between  them.  An  action  of  trespass  having 
been  brought  l)y  Child  &  Benton  against  Allen  for  taking  the  wagon,  it  was  held 
that  it  could  not  be  maintained.  Barrett,  J.  :  '"Of  course,  the  plaintiffs  must,  in 
the  first  instance,  stand  upon  such  title  as  would  give  them  the  right  to  retain 
an<l  hold  the  wagon  against  the  defendant,  as  the  agent  and  servant  of  Earl.  It  is 
now  too  late  to  call  in  question  the  right  of  a  vendor  by  conditional  sale,  to 
assert  his  title  to  the  property.  A  purchaser  from  the  conditional  vendee  ac- 
quires no  rigtit  against  the  original  owner  by  virtue  of  such  purchase,  and  even 
may  become  a  trespasser  in  the  eye  of  the  law  by  making  such  a  purchase,  and 
taking  possessicm  of  the  property  under  it.  There  is  a  reason  in  this  case,  if 
reason  were  necessary,  why  Earl  resorted  to  an  attachment.  By  virtue  of  the 
terms  of  the  sale,  his  right  to  the  wagon  would  have  been  satisfied  by  a  tender 
of  the  amount  of  his  lien,  by  an  attaching  creditor,  and  perhaps  by  an  assignee. 
But  until  such  tender,  his  possessory  right  continued  perfect  and  absolute.  As 
against  the  effect  of  such  a  tender,  it  may  have  been,  and  probably  was,  desirable 
to  him  to  fasten  upon  the  property  for  its  entire  value,  not  only  in  virtue  of  his 
lien  for  the  original  price  of  its  purchase,  but  aLso  as  a  means  of  turning  it  to 
account  upon  his  debt  against  Mclntyre,  outside  of  the  purchase  money  due  for 
the  wagon  "  (Ciiild  v.  Allen,  33  Vt.  47G). 


404  WRONGFUL   TAKIKG   OF   PERSONAL   PROPEnTY.        §  443. 

§  443.  If  a  person  intrusts  goods  to  another  to  be  re- 
turned in  a  given  time,  tlie  owner,  at  the  end  of  the  time, 
may  take  them  from  one  having  a  wrongful  possession. 
Accordingly,  where,  by  the  terms  of  an  agreement  in  writing 
between  A.  and  B,,  A.  left  with  B.  a  horse,  to  be  kept  six 
months,  and  if  B.  then  paid  twenty-five  dollars,  he  w^as  to 
have  the  horse  one  year  longer,  and  if  he  paid  twenty-five 
dollars  more  at  the  end  of  the  year,  the  horse  was  to  be  the 
property  of  B.,  and  B.  sold  the  horse  without  having  fulfilled 
the  terms  of  the  agreement,  it  was  held  that  the  act  of  sale 
terminated  the  bailment,  and  gave  A.  the  right  to  take  im- 
mediate possession,  and  to  retain  it  until  paid  the  balance 
of  the  purchase  mouey.^*  And  w^here  it  w^as  agreed  be- 
tween A.  and  B.  that  a  pair  of  cattle  should  be  delivered  to 
B.,  "  to  keep  and  use  in  a  farmer-like  manner  for  one  year," 
B.  to  have  the  privilege  of  keeping  them  upon  payment  of  a 
price  named,  and  the  cattle  were  accordingly  delivered  to  B., 
it  w^as  held  to  be  a  bailment,  and  not  a  conditional  sale ;  and 
the  cattle  having  been  sold  by  the  bailee  during  the  year, 
without  having  paid  for  them,  it  was  held  that  the  owner, 
after  the  year  had  expired,  could  follow  and  retake  them, 
without  being  liable  as  a  trespasser  to  the  person  from  whom 
they  were  taken,  though  a  purchaser  for  value.^  So,  on  the 
other  hand,  if  the  owner  of  goods,  after  parting  with  them 
for  a  valuable  consideration  for  a  specified  time,  takes  them 
back  before  the  expiration  of  the  time  agreed,  the  rightful 
possessor  may  lawfully  retake  them.     The  plaintifl:"  having  a 


'  Dunham  v.  Lee,  24  Vt.  432.  '  Chamberlain  v.  Smith.  44  Peun.  St.  R.  431. 

*  In  Lee  v.  Atkinson,  Cro.  Jac.  236;  s.  c.  Yelv.  172,  where  the  owner  cf  ;i 
horse  let  it  for  two  days,  and  finding  that  the  person  who  hired  it  was  going 
anotlier  way  than  that  for  which  lie  hired  the  horse,  by  force  retook  the  horse 
within  the  two  days,  it  was  held  that  he  was  not  justified,  not  because  he 
might  not  retake  his  own,  but  because  he  had  parted  with  the  possession  for 
those  two  days;  thus  recognizing  the  riglit  of  recapture,  though  not  under  sucli 
circumstances.  So,  too,  if  a  distress  is  taken  without  cause,  or  contrary  to  law, 
before  it  is  impounded,  the  party  may  rescue  it  (Co.  Litt.  160;  3  Blk.  Com.  12; 
Cotsworth  V.  Betison,  1  Ld.  Raym.  104;  s.  c.  1  Salk.  247). 

Where  the  bailee  of  goods  agrees  either  to  return  the  property  bailed,  or  to 
deliver  other  property  of  the  same  kind  and  quality,  the  obligation  on  the  part 
of  the  bailee  rests  in  contract,  and  until  delivery  is  made  by  him  the  bailor  has 
no  vested  interest  in  the  property  (Hurd  v.  West,  7  Cowen,  752). 


§  444.  RIGHT   OF   OWNER  TO   RETAKE   GOODS.  405 

COW  pasturing  in  the  defendant\s  field,  and  being  indebted 
for  the  agistment,  agreed  that  the  cow  should  be  a  security ; 
that  he  would  not  remove  her  until  the  defendant  was  paid, 
and  that,  if  he  did,  the  defendant  might  take  here  wherever 
she  might  be,  and  keep  her  until  he  was  paid.  The  plaintiff 
having  removed  the  cow  v/ithout  paying  the  debt,  and  the  de- 
fendant having  seized  her  in  the  highway,  in  an  action  of  tres- 
pass for  the  taking,  it  was  held  that  the  agreement  might  be 
set  up  as  a  defense  under  a  plea  that  the  cow  was  not  the 
plaintiff's.^  A.  entered  into  an  agreement  with  B.,  in  con- 
sideration of  four  hundred  dollars,  to  hire  to  him  for  a  year 
certain  slaves,  and  to  oversee  them,  and  work  as  a  laborer 
for  B.  B,  afterward,  for  good  and  sufficient  cause,  discharged 
A.  from  his  service ;  and  A.  having  taken  the  slaves  away 
with  him  when  he  left,  B.  with  another  person  pursued  him, 
and  took  back  the  slaves ;  whereupon  A.  brought  an  action 
of  trespass  against  B.  and  *the  other.  It  was  held  that,  al- 
though the  hirins;  of  the  slaves  and  of  A.  as  an  overseer  was 
an  entire  contract,  yet  B.'s  title  to  the  slaves  was  not  divested 
by  the  discharge  of  A.  from  his  service,  and  that  B.  had  a 
right  peaceably  to  reclaim  their  possession.^ 

§  444.  If  an  infant  rescinds  a  contract  for  the  sale  of 
personal  property  made  by  him,  and  the  title  is  thus  rein- 
vested in  him,  an  action  of  trespass  cannot  be  maintained 
against  him  for  taking  the  goods.^  But  goods  sold  upon 
credit,  cannot  law^fully  be  seized  by  the  seller  upon  the 
failure  of  the  buyer  to  make  payment.  Where  a  vendor 
sold  and  delivered  goods  without  payment,  and  then  being 
apprehensive  that  he  would  never  be  paid,  took  them  away 
from  the  debtor,  and  the  latter  brought  an  action  therefor,  it 
was  held  that  the  jury  had  no  right  to  consider,  in  mitiga- 
tion of  damages,  the  fact  that  the  goods  had  not  been  paid 
for,  and  that  there  was  reasonable  ground  to  believe  that 

'  Richnids  v.  Symons,  8  Q.  B.  90.         '  Leaird  v.  Davis,  17  Ala.  448. 
'  Shipman  v.  Ilorton,  17  Conn.  481. 


40G  WRONGFUL   TAKING  OF   PERSONAL   PROPERTY.        §  445. 

the  vendee  would  never  pay  for  tliem,  as  that  would  be  tan- 
tamount to  allowing  a  set-off  of  a  debt  in  an  action  of  tres- 
pass.^ 

5.  Return  of  ijropertij  hy  wrong-doer. 

§  445.  As  previously  stated,^  a  subsequent  tender  by  tbe 
wrong-doer  will  not  excuse  bim  if  I  clioose  to  demand  the 
value.  Where,  therefore,  the  property  of  the  plaintiff  was 
illegally  sold  for  a  school  district  tax,  bid  off'  by  the  plaintiff's 
agent,  and  paid  for  with  the  j)laintiff's  money,  it  was  held 
that  the  offer  to  deliver  up  the  note  of  the  agent,  or  to  pay 
the  same  amount  in  money  to  the  plaintiff,  could  not  change 
the  rule  of  damages.^  And  a  return  of  the  property,  though 
it  be  accepted  by  the  owner,  is  not  available  in  bar  of  the 
action,  but  only  in  mitigation  of  damages.^  ^'  Where,  how- 
ever, goods  are  taken  by  virtue  of  an  attachment  illegally 
issued,  ic  cannot  be  shown,  even  in  mitigation  of  damages, 
that  the  property  taken  was  afterward  applied  without  the 
consent  of  the  owner  to  the  satisfaction  of  a  valid  execution 
against  him.^  f      But  it    has    been    held    otherwise,  where 


^  Gillard  v.  Brittan,  8  M.  &  W.  575. 

"  Ante,  §  438. 

=  Clark  V.  Hallock,  16  Wend.  607. 

*  Tibbs  V.  Chase,  10  Mass.  125;  Caldwell  v.  Arnold,  8  Minn.  265. 

'  Pickering  v.  Truste,  7  T.  R.  53.     And  see  Earle  v.  Holderness,  4  Bing.  462. 

*  The  delivery  and  acceptance  of  a  man's  own  property  does  not  constiMite  a 
satisfaction.  Where,  therefore,  in  an  action  of  trespass  for  an  unlawful  entry 
upon  land,  the  defendant  set  up  that  after  the  entry  there  was  an  accord  be- 
tween him  and  the  plaintiff,  that  the  plaintiff  should  re-enter  and  enjoy  the 
land  without  interruption  by  the  defendant,  and  thut  the  defendant  should 
deliver  to  tlie  plaintiff  all  the  title  deeds,  which  was  done;  it  was  held  thnt  this 
was  no  answer,  as  it  must  be  presumed  that  the  title  deeds  belonged  to  the 
plaintiff,  and  to  deliver  him  his  ov,-n  deeds,  and  put  him  in  possession  of  his  own 
land,  was  no  satisfaction  of  the  previous  wrong  in  keeping  him  out.  It  was, 
however,  admitted,  that  if  the  defendant  had  shown  any  title  in  himself  to  the 
possession  of  the  deeds,  his  delivering  them  up  would  have  been  a  good  bar  to 
the  action  (Bro.  Abr.  Accord.  1). 

t  In  Hanmer  v.  Wilsey,  17  Wend.  91,  Wilsey  brought  an  action  of  trespass 
against  Hanmer  for  taking  a  horse  under  an  attachment  illegally  issued  by  a 
justice  of  the  peace.  The  officer  who  took  the  horse  from  the  stable  of  Wilsey, 
by  the  direction  of  Hinmer,  discovering  the  illegality  of  the  proceeding,  re- 
turned him  to  the  stable,  but  Wilsey  declined  to  receive  the  horse.  Hanmer 
then  caused  an  attachment  to  be  legally  issued,  by  virtue  of  which  the  horse  was 
taken,  and  subsequently  sold,  under  the  judgment  obtained  in  the  attachment 


§  440.  RETURN   or   PROPERTY  BY   WRONG-DOER.  407 

the  property  is  taken  again  from  the  trespasser  without  any 
agency  or  connivance  on  bis  part,  and  applied  to  the  owner's 
use,  although  without  the  latter's  consent,  by  the  act  of  a 
third  party.^ 

§  446.  The  fact  that  the  owner  of  the  goods  has  sold 
them  subsequent  to  their  being  taken,  will  not  purge  the 
original  wrong.  Where  drovers,  having  driven  away  a 
heifer,  afterward  bought  it  of  the  owner,  reserving  the  ques- 
tion of  damages  for  taking  it  away,  it  was  held  that  such 
purchase  would  not  bar  an  action  of  trespass  for  the  removal. 
The  wrong  was  not  atoned  for  or  satisfied,  and  the  original 
action  remained,  as  well  by  the  understanding  of  the  parties 
as  by  the  operation  of  law.^  A.  loaded  the  materials  of  a 
building:  belonuino-  to  B.  on  to  his  wmj-on  and  drove  off,  B. 
threatening  to  prosecute  him  if  he  did  not  carry  them  back. 


suit,  and  bought  by  Hanraer.  The  Supreme  Court,  in  affirming  the  judgment  of 
the  Common  Pleas,  which  was  for  the  plaintiff",  said:  "There  was  no  ground  for 
mitigating  the  damages.  The  horse  had  been  wrongfully  taken,  and  the  plaintiff 
had  a  right  to  insist  on  being  paid  the  value.  The  actual  return  of  the  horse  to 
the  plaintiff's  stable  without  his  assent  was  a  matter  of  no  legal  consequence. 
If  the  plaintiff  had  consented  to  receive  the  property,  it  would  not  have  defeated 
his  action  altogether.  It  is  not  a  defense  which  can  be  pleaded;  it  only  goes  to 
the  question  of  damages.  The  plaintiff  refused  to  receive  the  property,  and 
insisted  on  his  legal  riglit  to  recover  the  value,  as  well  as  damages  for  the  illegal 
taking.  It  can  make  no  difference  in  principle  that  the  horse  was  only  kept  a 
short  time.  The  injury  was  complete,  and  the  plaintiff's  right  of  action  was  as 
perfect  the  moment  after  the  horse  was  first  led  from  liis  stable  as  it  could  have 
been  after  the  lapse  of  a  month  or  a  year.  The  defendant  could  not,  by  any  act 
of  his  own,  without  the  plaintiff's  consent,  defeat  the  action.  I  was  first  inclined 
to  the  opinion  that  the  second  taking  of  the  horse  on  valid  process  against  the 
plaintiff,  might  be  regarded  as  equivalent  to  an  acceptance  of  the  property 
when  tendered,  and  that  the  damages  should  be  mitigated  on  that  ground.  It 
may  be  doubted  whether  this  question  can  properly  be  made  on  the  bill  of  ex- 
ceptions. But,  waiving  that  consideration,  the  return  and  subsequent  retaking 
of  the  property  could  not  change  the  plaintiff's  rights.  They  were  complete, 
and  he  has  done  nothing  to  relinquish  them.  He  said,  in  effect,  to  the  defend- 
ant: You  have  wrongfully  taken  my  property;  I  will  not  receive  it  back;  do 
with  it  what  you  please.  I  insist  on  my  remedy  by  action.  There  i3,^I  think,  no 
legal  principle  upon  which  the  defendant,  by  any  mere  act  of  his  own,  could  get 
rid  of  the  difficulty.  If  the  horse  had  not  been  returned  to  the  plaintiff's  stable, 
the  levy  of  the  second  attachment  could  not  have  altered  the  case.  It  was  a 
matter  of  no  moment  to  the  plaintiff  what  l)ecame  of  the  horse  after  the  original 
illegal  taking.  Replacing  the  animal  in  the  plaintiff's  stable,  without  his  assent, 
was  a  nugatory  act.  It  could  no  more  operate  to  prejudice  the  plaintiff  than 
any  other  disposition  which  the  defendant  might  have  made  of  the  property." 

'  Wehle  agst.  Butler,  43  How.  Pr.  R.  5,  and  cases  cited. 

^  Brooks  v.  Olmstead,  17  Penn.  St.  R.  24. 


408  WRONGFUL  TAKING  OF   PERSONAL  PROPERTY.        §  446. 

A.  afterwards  met  on  the  road  R,  "  to  whom  he  said  he  did 
not  know  but  he  had  got  into  trouble,  and  asked  him  what 
he  should  do.  F.  said  he  was  going  to  get  leave  of  the 
plaintiff  to  buy  the  materials  of  the  defendant,  and  then 
went  and  asked  the  plaintiff  if  he  had  any  objections  to  his 
purchasing,  who  said  he  had  none,  for  he  had  been  informed 
that  he  should  have  his  remedy  against  A.  F.  then  told  A. 
he  had  pui'chased  the  materials,  and  A.  drove  on  with  his 
load."  Held  that  the  trespass  of  A.  was  not  released  or 
extinguished  by  the  subsequent  transaction  between  B. 
and  F.^  * 


'  Woodruff  V.  Halsey,  8  Pick.  333. 

*  Under  certain  circumstances  the  court  will  stay  the  proceedings  in  an  action 
of  trespass  for  seizing  goods,  on  the  defendant's  restoring  the  goods,  or  paying 
the  full  value  of  them  with  the  costs  of  the  action  (Knot  v.  Barker,  3  Anst.  896; 
Hanmer  v.  Wilsey,  supra,  p.  406,  note). 


CHAPTER  III. 

THE   TAKING    OF   PERSONAL    PROPERTY    BY    OFFICER. 

1.  Goods  that  may  or  may  not  be  taken. 

2.  What  essential  to  constitute  an  attachment. 

3.  When  personal  property  bound  by  levy. 

4.  Protection  aflForded  to  officer  by  process. 

5.  Duty  and  liability  of  officer  in  seizing  goods. 

6.  Power  and  duty  of  person  specially  authorized  to  act  officially. 

7.  Validity  of  acts  of  officer  de  Jado. 

8.  Liability  of  sheriff  for  illegal  acts  of  deputy. 

9.  Liability  of  assessors  of  taxes. 
10.  Liability  of  collector  of  taxes. 

1.    Goods  that  may  or  may  not  he  taJcen. 

§  447.  Apart  from  any  consideration  as  to  what  may  be 
specially  exempt,  all  tbe  personal  property  of  a  judgment 
debtor  iii  prima  facie  liable  to  levy  and  sale  upon  execution.^ 
If  property  is  so  in  process  of  manufacture  and  transition  as 
to  be  rendered  useless,  or  nearly  so,  by  having  that  process 
arrested,  and  requiring  art,  skill  and  care  to  finish  it,  so  that 
when  completed  it  will  be  a  different  thing,  it  is  not  subject 
to  attachment.  Such  is  bakers'  dough,  the  materials  in  cruci- 
bles in  the  process  of  fusion,  the  burning  ware  in  a  potter's 
oven,  a  burning  brick  kiln,  or  a  burning  pit  of  charcoal.  The 
officer  cannot  be  compelled  to  attach,  as  he  should  have  the 
right  of  removal.  Nor  is  he  bound  to  conduct,  by  himself 
or  agent,  such  process,  and  be  responsible  to  both,  parties  for 
its  successful  result,^  At  common  law,  with  a  few  excep- 
tions, no  property  was  exempt  from  distress  except  such  as 
would  necessarily  perish  or  suffer  diminution.  Hides  in  a 
vat  could  not  be  distrained,  because  if  exposed  to  the  air  and 
dried  during  the  process  of  tanning  they  were  afterward  in- 
capable of  being  reduced  into  leather,  and  for  that  reason,  it 

'  Dains  v.  Prosser,  32  Barb.  290.  '  Wilds  v.  Blanchard,  7  Vt.  138. 


410  TAKllifIG  PERSONAL   PROPERTY  BY   OFFICER.  §  448. 

was  held  in  Bond  v.  Ward/  tbat  liides  thus  situated  could 
not  he  attached  on  inesne  process.  Grain  in  the  stack  was 
not  liable  to  distress,  because  the  quantity  would  necessarily 
be  diminished  by  removal.  But  if  the  landlord  found  grain 
upon  a  cart  he  might  distrain  and  drive  it  away.^  If  grain 
could  be  removed  without  waste,  or  if  hides  raised  from  the 
vats  and  becoming  dry  could  be  returned  again  and  the  tan- 
ning completed,  the  ol)jection  to  distraining  then  ceased.^ 
Where  a  portion  of  coal  in  a  pit  was  made  so  as  to  need  no 
further  attention  and  labor,  and  the  residue  had  so  far  pro- 
gressed as  to  have  been  entirely  burned  to  coal,  though  some 
labor  and  skill  were  still  necessary  in  order  to  separate  and 
preserve  it  properly,  and  it  did  not  appear  but  that  it  might 
all  have  been  secured,  it  was  held  that  if  the  officer  saw  fit  to 
attach  and  take  possession  of  the  coal  and  run  the  risk  of 
being  able  to  keep  it  safely,  he  had  a  right  to  do  so.^ 

§  448.  At  common  law,  chattels  in  the  actual  possession 
and  use  of  a  debtor  cannot  be  taken.  In  Coke  on  Littleton,^ 
it  is  said  that  "  although  it  be  of  valuable  property,  as  a 
horse,  &c.,  yet  when  a  man  or  woman  is  riding  on  him,  or  an 
axe  in  a  man's  hand  cutting  of  wood,  and  the  like,  they  are 
for  that  time  privileged,  and  cannot  be  distrained  any  more 
than  a  horse  on  which  a  man  is.'"  *  In  Sunbolf  v.  Alford/ 
it  is  stated  to  be  settled  law,  that  "  goods  in  the  actual  pos- 
session and  use  of  the  debtor  cannot  be  distrained;  a  man's 
clothes  cannot  be  taken  off  of  his  back  in  execution  of  a 
fieri  facias.''''  In  Massachusetts,  under  the  statute  ^  which 
provides  that  "  all  goods  and  chattels  that  are  liable  to  be 
taken  on  execution,  may  be  attached,  except  such  as  from 
their  nature  or  situation  have  been  considered  as  exempted 
from  attachment  according  to  the  principles  of  the  common 
law,"  an  action  was  brouo:ht  ao;ainst  an  officer  for  attachins; 

'  7  Mass.  123.  '  Co.  Lit.  47  b. 

'  Leavitt  v.  Holbrook,  5  Vt.  405.  "  Hale  v.  Huntley,  21  Vt.  147. 

"  47  a. 

"  Read  v.  Burley,  Cro.  Eliz.  539,  596;  Simpson  v.  Hartopp,  Willes,  512. 
^  3  M.  &  W.  248.  '  Rev.  Sts.  of  Mass.  ch.  90,  §  21. 


§  449.  GOODS  THAT   MAY   OR  MAY  NOT  BE   TAKEN.  411 

and  forcibly  taking  from  tLe  plaintiff  his  watch,  by  severing 
the  silken  guard  to  which  the  watch  was  fastened,  and  which 
passed  around  the  plaintiff's  neck.  It  was  held  that  the  de- 
fendant was  liable  for  the  value  of  the  watch,  being  a  tres- 
passer ah  initio  j  and  that  it  was  no  answer  to  the  action 
tliat  he  tendered  to  the  plaintiff  the  value  of  the  cord  by 
which  the  watch  was  fastened,  or  that  the  watch  itself,  de- 
tached from  the  person,  was  subject  to  attachment.-^  "'  The 
ground  iij^on  which  these  and  other  similar  decisions  rest  is, 
that  it  would  tend  directly  to  a  collision  and  breach  of  the 
peace  if  articles  thus  situated  were  allowed  to  be  taken  from 
a  debtor.^ 

§  449.  By  the  ancient  law  of  distress,  tools  were  exempt 
from  seizure;^  in  which  designation  are  included  instru- 
ments of  small  value,  used  with  the  direct  application  of 
manual  strength.^  Under  statutes  exempting  tools  from 
seizure  and  sale,  a  portable  machine,  called  a  billy  and  jenny, 
used  for  spinning,  and  manufacturing  cloth,  and  also  a  print- 
ing press  and  type,  and  other  instruments  used  in  printing, 
were  adjudged  not  exempt  from  attachment  or  execution,  ^f 


'  Mack  V.  Parks,  8  Gray,  517. 

^  Com.  Dig.  Distress,  C;  Gilbert  on  Distresses,  43;  Gorton  v.  Falkner,  4  T. 
R.  565;  Storey  v.  Eobinson,  G  lb.  138;  Adames  v.  Field,  13  Ad.  &  El.  649. 

=  Co.  Lit.  47.  '  Dailey  v.  May,  5  Mass.  313. 

°  Kilburn  v.  Demming,  2  Vt.  404;  Buckingham  v.  Billings,  13  Mass.  82; 
Spooner  v.  Fletcher,  3  Vt.  133. 

*  In  Mack  v.  Parks,  supra,  the  court  said:  "The  watch  at  the  time  it  was 
taken  by  the  defendant  was  in  the  plaintiff's  actual  possession  and  use,  worn  as 
part  of  his  dress  or  a|)parel,  and  was  severed  from  his  person  by  force.  Such  an 
iict,  if  permitted,  would  tend  quite  as  directly  to  a  breach  of  the  peace  as  to  take 
from  a  man  the  horse  on  which  he  was  riding,  or  the  axe  with  which  he  was 
felling  a  tree.  It  is,  indeed,  a  more  gross  violation  of  the  sanctity  of  the  person, 
and  tends  to  a  greater  aggravation  of  the  feelings  of  the  debtor.  Nor  would  it 
be  practicable  to  place  any  limit  to  the  exercise  of  such  a  right.  If  allowed  at 
all,  it  must  extend  to  every  article  of  value  usually  worn  or  carried  about  the 
person.  If  an  ofKcer  can  sever  a  silken  cord,  he  may  likewise  break  a  metallic 
chain.  If  he  can  seize  and  take  a  watch,  he  may  wrest  a  breast  pin  or  ear  ring 
from  the  person,  or  thrust  his  hand  into  the  pocket  and  carry  off  money.  He 
may,  in  short,  I'esort  to  any  act  of  force  necessary  to  enable  him  to  attach  prop- 
erty in  the  personal  custody  of  the  debtor.  It  is  obvious  that  such  a  doctrine 
would  lead  to  consequences  most  dangerous  to  the  good  order  and  peace  of 
society." 

t  '' Unless  tiie  word  tools  is  taken  in  its  appropriate  sense,  as  applied  to 
simple  instruments  ordinarily  used  in  manual  labor,  the  exemption  will  embrace 


412  TAKING  PERSON.AX  PROPERTY   BY  OFFICER.  §  449. 

And  cocks  in  a  cockpit  were  held  not  to  be  "  implements," 
within  tlie  contemplation  of  a  statute  which  authorized  the 


property  of  a  kind  and  value  which,  it  is  obvious,  never  could  have  been  within 
the  intent  and  meaning  of  the  statute.  It  will  extend,  for  aught  we  see,  not 
only  to  the  implements  and  apparatus  of  a  printing  office,  but  to  the  machines, 
looms,  and  sjiiudles  of  a  manufactory,  and  indeed  to  a  great  variety  of  compli- 
cated machinery  and  utensils  of  great  value,  all  of  which  will  be  locked  up  from 
creditors.  On  principles  of  justice,  the  proj^erty  of  a  debtor  should  be  sub- 
ject to  the  satisfaction  of  his  debts:  and  the  exemption  in  the  statute  ought  not 
to  be  extended  beyond  what  the  policy  and  humanity  of  the  law  clearly  require. 
If  printing  presses  and  types  were  exempt,  it  would  follow  that  many  other 
kinds  of  property  would  also  be  exempt ;  such  as  lithographic  and  stereotype 
plates,  engravings  for  stamping  calicoes,  pidtures,  or  paper  hangings.  If  it  were 
once  established  that  articles  from  which  an  impression  is  taken,  either  upon 
paper  or  cloth,  were  exempt,  it  would  be  claimed,  with  propriety,  that  the 
machinery  with  which  the  paper  and  cloth  were  manufactured  was  also  exempt; 
under  which  would  be  classed  all  the  complicated  machinery  of  large  manufac- 
turing establishments  "  (Paddock,  J.,  in  Spooner  v.  Fletcher,  supra). 

A  wooden  boot,  hung  up  at  the  door  of  a  boot  and  shoe  maker's  shop  as  a  sign 
of  his  trade,  is'  not  a  tool.  lu  Wallace  v.  Barker,  8  Vt.  440,  which  was  an  action 
of  trespass  against  a  deputy  sherift"  to  recover  the  value  of  a  wooden  boot,  which 
the  plaintiff  claimed  was  exempt  from  seizure  and  sale  at  the  suit  of  creditors, 
the  court  said :  "It  is  quite  obvious  that  the  article  in  question  is  not  to  be 
ranked  among  any  of  the  statutory  exceptions.  It  was  in  no  sense  a  tool  or  im- 
plement of  the  debtor's  trade,  but  a  mere  sign  or  symbol  of  it.  But  exceptions 
must  exist  independently  of  the  statutes;  and  the  question  is.  whether  any  such 
ap])ly  to  the  present  case.  In  deciding  this  question,  we  must  keep  in  view  the 
nature  and  object  of  an  attachment,  as  authorized  by  our  law.  It  is  a  sort  of 
sequestration  of  property  for  the  eveutunl  security  of  the  attaching  creditor.  The 
property  thus  taken  is  to  remain  in  the  custody  of  the  law,  to  await  the  deter- 
mination of  the  suit  in  which  it  is  attached.  And  in  most  instances  this  is  ex- 
pected to  require  a  considerable  period  of  time.  Hence,  an  exception  arises  in 
favor  of  property  which  is  peculiarly  perishable  in  its  nature,  as  fresh  meat 
during  a  portion  of  the  yepr — fresh  iish,  green  fruits,  and  the  like,  whenever  it 
is  manifest  that  the  purpose  of  the  attachment  cannot  be  effected  before  they 
will  decay  and  become  worthless.  As  the  policy  of  the  law  is  not  to  authorize 
the  destruction  of  property,  but  to  enable  the  l)nrty  attaching  to  obtain  security 
for  his  claim,  it  impliedly  forbids  an  attachment  in  these  cases.  The  same  prin- 
ciple applies  when  the  thing  sought  to  be  attached  is  in  such  a  stage  of  manufac- 
turing process  that  its  removal  by  an  officer,  or  the  suspension  of  care  and  labor 
upon  it  by  the  owner  would  occasion  a  loss  of  the  property,  or  a  great  damage 
to  it.  It  is  insisted  that  the  principle  of  exemption  extends  to  all  cases  where 
the  thing  attached  could  be  of  no  substantial  benefit  to  the  creditor  as  a  security, 
or  where  it  could  not  be  expected  to  sell  for  a  price  bearing  any  reasonable  pro- 
portion to  its  cost,  and  its  real  or  imaginary  value  to  the  owner.  Admitting 
this  proposition  to  be  just  to  some  extent,  yet  any  general  rule  of  exemption 
founded  U})on  it  must  be  difficult  of  application  and  of  a  doubtful  policy.  In- 
deed, the  power  of  the  court  thus  to  limit  and  qualify  the  creditor's  right  under 
the  statute,  may  well  be  questioned  when  the  right  can  be  exercised  without  in- 
jury to  the  property  attached.  The  present  case,  however,  does  not  require  us 
to  lay  down  any  precise  rule  upon  the  subject,  since  the  article  in  question 
appears  to  have  possessed  a  well  known  value.  It  was  equally  appropriate  for 
any  one  of  the  trade,  and  required  no  alterations  on  being  removed  from  one 
shop  to  another.  The  papers  show  that  it  was  sold  for  about  twenty  dollars  on 
the  creditor's  execution.  This  is  evidence  of  its  value  as  an  article  of  sale,  at 
least  among  particular  tradesmen.     In  these  respects  it  differed  entirely  from  the 


§  449.     GOODS  THAT  MAY  OR  MAY  NOT  BE  TAKEN.      413 

seizure  of  "  any  gaming  apparatus  or  implements  used  or 
kept  and  provided  to  be  used  in  unlawful  gaming,  in  any- 
gaming  house."  ^  *     The  rolling  stock  of  a  railroad  company 


ordinary  signs  of  trade  and  professions.  These  are  known  to  be  of  little  or  do 
intrinsic  value,  and  useful  only  to  those  for  whom  they  are  made.  AVe  are  all 
agreed  that  this  j)iece  of  property  was  liable  to  attachment.'' 
Coolidge  V.  Choate,  11  Mete.  79. 
*  The  case  referred  to  in  the  text  was  an  action  of  trespass  against  a  sherifiF 
and  his  posse  for  taking,  carrying  away  and  destroying  game  cocks  from  a  cock- 
pit. The  defendants  sought  to  justify  their  acts  by  virtue  of  a  sworn  complaint 
made  to  a  justice  of  the  peace  and  a  warrant  issued  by  him  to  break  up  unlawful 
gaming.  The  judge  before  whom  the  cause  was  tried  charged  the  jury  that  game 
cocks  were  not  appai'atus  or  implements  of  gaming,  within  the  meaning  of  the 
statute,  in  such  a  sense  that  they  could  be  seized  by  an  officer  on  a  warrant,  oi 
destroyed  by  order  of  a  magistrate.  The  defendants'  counsel,  in  support  of  their 
exception  to  the  ruling,  relied  on  the  Revised  Statutes  of  Massachusetts,  ch.  50, 
§  19,  which  authorize  and  require  any  justice  of  the  peace,  or  any  police  court, 
on  complaint  made  on  oath  by  any  person  "that  he  suspects,  or  has  probable 
cause  to  suspect,  that  any  house  or  other  building  is  unhiwfully  used  as  and  for 
a  common  gaming  house,  for  the  purpose  of  gaming  for  money  or  other  prop- 
erty," to  issue  a  warrant  "commanding  the  sheriff  or  his  deputy,  or  any  consta- 
ble, to  enter  into  such  house  or  building,  and  there  to  arrest  all  persons  who 
shall  be  there  found  playing  for  money  or  otherwise,  and  to  take  into  their 
custody  all  the  implements  of  gaming  as  aforesaid,  and  to  keep  the  said  persons 
and  implements,  so  that  they  may  be  forthcoming  before  such  justice  or  police 
court,  to  be  dealt  with  according  to  law."  Chapter  142,  sections  1  and  3,  also 
authorizes  magistrates  to  issue  warrants  to  search  for  and  seize  (among  other 
things)  "  any  gaming  apparatus  or  implements  used,  or  kept  and  provided  to  be 
used  in  unlawful  gaming  in  any  gaming  house."  The  Supreme  Court,  in  refusing 
to  disturb  the  verdict,  said  :  "It  has  been  argued  for  the  defendants  that  fighting 
or  game  cocks  may  be  considered  as  implements  of  gaming  under  tlie  true  con- 
struction of  the  statute ;  that  all  things  by  which  an  illegal  game  is  played  must 
have  been  intended  to  be  taken  by  the  otficer,  and  that  in  order  to  caiTv  out  this 
intent  of  the  law  the  meaning  of  the  word  'implements'  should  not  be  restricted 
to  its  strictest  sense,  but  should  be  enlarged  from  a  literal  to  a  reasonable  mean- 
ing. But  we  cannot  adopt  any  such  construction  of  a  penal  statute.  The  rule 
of  construction  of  all  penal  statutes  is  well  established  and  is  unquestionable. 
Where  a  statute  inflicts  a  penalty  or  fine  on  the  offender,  or  a  forfeiture  of  his 
property,  it  is  to  be  taken  strictly.  For  it  is  said,  '  whenever  any  ambiguity 
arises  in  a  statute  introducing  a  new  penalty  or  punishment,  the  decision  shall 
be  on  the  side  of  lenity  and  mercy,  or  in  favor  of  natural  right  and  liberty,  or  in 
other  words,  the  decision  shall  be  according  to  the  strict  letter  in  favor  of  the 
subject'  (1  Bl.  Com.  88;  Christian's  note,  19).  But  all  statutes  are  to  be  con- 
strued according  to  the  popular  meaning  of  their  language,  if  that  meaning  can 
be  clearly  ascartained,  except  as  to  technical  terms,  which  are  to  be  taken  in 
their  legal  sense.  We  are  of  opinion  that  the  words  'implements  of  gaming' 
v/ere  not  intended  to  include  fighting  cocks,  or  anj'  animal  or  being  having  life, 
and  that  the  ruling  of  the  presiding  judge  at  the  trial  on  this  point  is  well 
founded.  It  is  therefore  unnecessary  to  decide  whether  the  cocks  taken  were 
lawfully  killed  or  destroyed.  For  if  they  were  unlawfully  taken  by  the  de- 
fendants they  are  responsible,  wdiether  the  cocks  were  afterwards  destroyed  or 
not.  We  do  not  mean,  however,  to  suggest  any  doubt  on  this  point  as  to  the 
construction  of  the  Kev.  Sts.,  ch.  142,  sects.  2  and  5,  under  which  the  defendants 
maintain  that  the  cocks  were  lawfully  destroyed  under  the  direction  of  the  court 
or  magistrate.  By  these  sections,  any  '  gaming  a])|)aratus  or  implements  used,  or 
kept  and  provided  to  be  used  in  unlawful  gaming  in  any  gaming  house,'  arc  re- 


414  TAKING   PERSONAL  PROPEKTY   BY   OFFICER.  §  449. 

may  l)e  attached  when  uot  in  use,  the  same  as  other  personal 
property.^  * 


quired  to  be  burnt  or  otherwise  destroyed  under  the  direction  of  the  court  or 
tnagistrtite.  Tlie  words  '  implements  '  and  '  apparatus  '  have  tlie  same  meaning 
and  are  so  defined.  No  one,  we  apprehend,  ever  did  or  ever  would  call  a  living 
animal  an  apparatus.  Nor  is  there  any  reason  to  tuppose  that  the  legislature  in- 
tended l)y  this  statute  to  authorize  a  magistrate  to  l)urn  or  destroy  any  living 
animal.  If  cock  fighting  l)e  a  cruel  game  or  sport,  as  it  doubtless  is,  let  the 
oS'enders  be  punished  who  stimulate  tlie  fighting  propensities  of  these  animals, 
and  who  furnish  them  with  instruments  of  destruction,  or  for  the  purpose  of  in- 
flicting pain  or  causing  bloodshed,  which  are  not  furnished  l)y  nature.  But  why 
should  these  animals  be  burnt  or  otherwise  destroyed  ?  This  would  be  authoriz- 
ing the  cruelty  which  the  hiw  is  intended  to  prevent.  Life  is  the  gift  of  God, 
not  to  man  only,  but  to  all  animals,  and  it  ought  uot  to  be  taken  away  except 
from  necessity,  or  for  some  useful  and  proper  purpose." 

'  Boston,  Concord  &  Montreal  R.  R.  v.  Gil  more,  37  N.  Hamp.  410. 

*  This  was  an  action  of  trespass  against  a  sherift'  for  attaching  passenger  and 
freight  cars  and  locomotives  belonging  to  the  plaintifis,  which  the  plaintifi's 
claimed  were  exempt  from  seizure  and  sale.  It  was  argued  that  the  ordinary 
rule  relative  to  corporations  did  not  apply,  for  ,the  reason  that  railroads  are 
public  corporations  whose  p^roperty  is  consecrated  to  public  uses,  and  there- 
fore, on  grounds  of  public  policy,  cannot  be  taken  in  execution.  The  court  said: 
"We  are  unable  to  see  any  principle  of  public  policy  or  convenience  which 
should  allow  such  corjiorations  to  mortgage  their  cars  and  engines,  that  would 
not  be  equally  strong  to  allow  a  creditor  of  the  corporation  to  secure  a  lien 
substantially  of  the  same  kind  by  an  attachment.  In  either  case  the  debt  must 
be  paid,  or  the  creditor,  by  suitable  proceedings,  may  cause  the  property  to  be 
applied,  by  sale  or  otherwise,  to  the  payment  of  the  debt;  and  the  inconvenience 
of  the  public,  or  to  the  corporation,  is  not  materially  greater  in  the  one  case  than 
in  tb.e  other.  It  would  seem  then  that  so  long  as  the  law  allows  to  the  corpora- 
tion the  right  to  deprive  themselves  by  a  mortgage,  in  a  greater  or  less  degree,  of 
the  power  of  readily  performing  their  public  obligations,  and  allows  them  to  con- 
tract debts  which,  in  the  case  of  others,  may  be  secured  by  attachment,  there 
can  be  little  reason  in  denying  to  the  creditor  of  a  railroad  the  ordinary  right  to 
secure  his  debt  by  attachment,  especially  when  the  debtors  can  readily  relieve 
themselves  from  the  inconvenience  by  payment  of  security."  In  Farmers'  Loan 
&  Trust  Co.  v.  Hendriekson,  25  Barb.  484,  the  plaintifi's  were  holders  of  a  mort- 
gage made  by  the  Flushing  Railroad  Company  to  them,  of  their  track,  i)uildings. 
rails  purchased  or  to  be  purchased,  engines,  cars,  &c.  The  defendant,  as  sheriff, 
levied  an  execution  against  the  railroad  on  some  of  the  engines  and  cars.  The 
question  was,  whether  the  property  was  to  be  considered  as  between  the  mort- 
gagees and  execution  creditors  as  fixtures  of  the  road.  Strong,  P.  J.,  after  a  full 
discussion,  came  to  the  conclusion  that  the  cars,  engines,  &c.,  were  properly  to 
be  regarded  as  fixtures,  and  so  not  liable  to  seizure  on  execution  as  against  the 
mortgagees,  ami  for  tljc  same  reason  that  the  mortgages  need  not  be  recorded 
by  the  town  clerk,  which  was  made  necessary  by  the  statute  to  the  validity  of 
mortgages  of  personal  property.  He  reasoned  that  ''railway  cars  are  a  necessary 
part  of  the  whole  establishment,  without  which  it  would  be  inoperative  and 
valueless.  Their  wheels  are  fitted  to  the  rails,  they  are  constantly  upon  the  rails, 
and  except  in  cases  of  accidents,  or  when  taken  off  for  repairs,  nowhere  else; 
thev  are  not  moved  off  the  land  belonging  to  the  company;  they  are  peculiarly 
adapted  to  the  use  of  the  railway,  and  in  fact  cannot  be  applied  to  any  other 
purpose;  they  are  not  like  farming  utensils,  and  possibly  the  machinery  in  fac- 
tories, and  many  of  the  movable  appliances  in  stores  and  dwellings,  the  objects 
of  general  trade;  they  are  permanently  used  on  the  particular  road  where  they 
are  employed,  and  are  seldom,  if  ever,  changed  to  any  other.  In  New  Hamp- 
shire, Boston,    Concord  &  Montreal  R.  R.  v.  Gilmore,  37  N.  Hamp,  410,  c()ntro- 


§  450.     GOODS  THAT  MAT  OR  MAY  NOT  BE  TAKEN.       415 

§  450.  The  word  necessary,  or  necessaries,  lias  been  con- 
sidered, in  legal  phraseology,  to  extend  to  things  of  conven- 
ience and  comfort,  and  to  such  as  are  suitable  to  the  situation 
of  the  person  in  society,  and  not  to  be  confined  to  things 
absolutely  necessary  for  mere  subsistence.  A  statute  ex- 
empting from  seizure  "  necessary  wearing  apparel  for  imme- 
diate use,"  has  been  held  to  include  an  outside  or  great  coat 
at  all  times  and  seasons  of  the  year,  and,  in  addition  to  decent 
and  comfortable  every  day  clothing,  a  full  suit  to  wear 
abroad  or  to  church.^  In  an  action  of  trespass  for  taking,  by 
virtue  of  an  attachment,  certain  liousehold  furniture  l)elong- 
ing  to  the  plaintiff,  the  principal  question  in  the  case  in- 
volved the  construction  given  by  the  court  below  to  the 
statute,  which,  among  other  property,  exempted  from  seizure 
"  bedding  and  household  furniture  necessary  for  supporting 

verted  the  doctrine  laid  down  in  Farmers'  Loan  &  Trust  Co.  v.  Hendrickson, 
supra.  Bell,  J.,  who  delivered  the  opinion  of  the  court,  said:  "All  these  things 
are  at  least  as  true  of  the  carts,  plows,  &c..  used  ou  a  farm  with  reference  to  the 
farm,  yet  no  one  ever  imagined  them  to  be  fixtures.  Aud  to  those  who  habitu- 
ally see  the  same  cars,  and  often  the  same  engines,  running  from  the  line  of 
Canada  to  Boston  over  roads  owned  by  several  corporations,  the  facts  assumed 
appear  entirely  groundless.  No  particular  cars,  nor  cars  owned  by  the  road,  are 
necessary  to  operate  it,  since  many  ro.ids  are  operated  with  the  cars  of  other  cor- 
porations. The  wheels  are  not  fitted  to  any  road  in  particular,  but  may  be 
equally  useful  on  any  road  of  similar  gauge.  The  engines  and  cars  are  not  kept 
(m  the  road  or  lands  of  the  same  comf)any,  but  are  often  used  on  other  roarls. 
and  they  are  subjects  of  trade  as  much  as' coaches  or  steamboats.  The  idea  that 
property,  either  real  or  personal,  may  become  a  tnere  incident  to  a  franchise,  so 
that  tiie  franchise  and  property  shall  constitute  an  entire  thing,  is  uot  found  in 
any  of  the  books  of  the  common  law  so  far  as  w^e  are  aAvare.  The  right  to  a  ferry 
is  such  a  franchise,  and  the  boats  required  for  the  transportation  of  passengers 
and  their  property  are  entirely  indispensable  for  the  discharge  of  the  public 
duties  of  the  owner,  yet  we  have  found  no  instance  where  it  lias  been  claimed 
that  such  l)oats  were  exempt  from  seizure  in  discharge  of  the  owner's  debts. 
The  property  of  individuals  who  owe  duties  to  the  public  is  not  exempted  from 
liibiiity  to  the  ordinary  process  of  law,  except  so  long  as  it  is  in  actual  use  in  the 
discharge  of  that  duty.  Such  is  the  case  of  the  contractor  to  carry  the  mail.  It 
has  never  been  held  that  the  steamboat  or  coacli  and  horses  used  in  the  convey- 
ance of  the  mail  were  exempt  when  not  in  use.  Considering,  then,  that  it  is  not 
necessary  for  the  discharge  of  the  public  duties  of  these  corporations  that  they 
should  l)e  the  owners  of  cars  or  engines— many  such  roads  being  operated  with 
the  cars  of  other  corporations;  that  it  is  a  matter  of  great  uncertainty  what  arti- 
cles of  the  personal  property  of  such  corporations  are  necessary  for  the  discharge 
of  their  public  duties;  that  no  means  exist  by  which  it  can  be  determined  what 
is  necessary  or  otherwise;  that  it  must  be  very  diflicult  for  courts  to  lay  down 
any  definite  rule  by  whicii  officers  can  be  guided,  who,  in  such  cases,  must  decide 
at  their  peril;  it  seems  to  be  neither  judicious  nor  expedient  to  establish  an  ex- 
emption of  the  kind,  unless  it  is  done  by  the  direct  action  of  the  legislature." 
'  Peverly  v.  Sayles,  10  N.  Ilarap.  35a. 


410  TAKING   PERSONAL  PROPERTY  BY  OFFICER.  §  451. 

life."  ^  The  judge  cliarged  the  jury  that  this  provision  ex- 
empted only  such  articles  of  furniture  as  were  indispensably 
necessary  for  supporting  the  lives  of  the  debtor's  family. 
But  the  court  of  review  held  that  this  was  too  risrid  a  con- 
struction.^  *  It  was  decided  that  a  time-piece  was  included 
in  a  statute  exempting  from  sale  on  execution  necessary 
articles  of  household  furnitui'e  ;  ^  and  the  exemption  of  a  cow 
Avas  held  to  include  the  butter  made  from  her  milk.^  But  a 
statute  exempting  "  one  hog  and  the  pork  of  the  same  w^heu 
slaughtered,"  does  not  protect  from  seizure  a  second  hog 
while  the  first  remains,  either  alive  or  butchered,  in  the 
hands  of  the  debtor,  the  design  of  the  statute  being  to  ex- 
empt from  process  an  amount  of  property  sufficient  merely 
for  the  debtor's  immediate  wants.^ 

§  451.  Where  one  or  more  articles  of  a  particular  kind, 
or  a  particular  quantity  in  value,  out  of  several  kinds  are  ex- 
empt by  law  from  sale  on  execution,  and  the  debtor  has  a 
larger  number  or  quantity  in  value,  he  may  determine  which 
he  will  claim  as  exempt.  The  statute  gi\dng  such  exemption 
is  for  the  benefit  of  families,  from  motives  of  public  policy. 
It  confers  a  personal  priA'ilege  upon  the  debtor,  which  he 
may  waive  altogether  or  insist  upon  as  he  may  elect ;  and  he 
may  waive  his  privilege  as  to  every  article  but  one,  and  insist 
upon  it  as  to  that  article,  if  it  belongs  to  the  kicd  or  class  of 


'  Rev.  Sts.  of  CoDD.  ch.  1,  p.  112,  §  179. 
"  Montague  v.  Richardson,  24  Conn.  338. 
'  Leavitt  v.  Metcalf,  2  Vt.  342. 

*  Ibid.  '  Parker  v.  Tirrell,  19  N.  Hamp.  301. 

*  In  an  action  of  trespass  for  attaching  household  furniture  exempt  by  statute 
from  seizure,  the  question  whether  an  apparatus  called  a  range  is  a  stove,  is  one 
of  fact  for  the  jury  (Montague  v.  Richardson,  24  Conn.  338). 

Under  a  statute,  that  "Every  citizen  enrolled  and  providing  himself  with  a 
uniform,  arras,  ammunition  and  accoutrements,  shall  hold  the  same  exempted 
from  all  suits,  distresses,  executions,  or  sales  for  debt,  or  payment  of  taxes, "  it 
was  held,  that  a  horse  and  saddle  owned  by  a  member  of  a  company  of  cavalry 
were  not  exempt  (Fry  v.  Canfield,  4  Vt.  9).  Williams,  J. :  "As  to  most  of  the 
articles  which  a  soldier  is  obliged  to  provide,  they  are  useful  only  as  military 
equipments,  and  there  may  be  some  propriety  in  exempting  those  articles  from 
seizure  which  a  man  is  obliged  to  provide  and  keep  almost  constantly  for  the  use 
of  the  public.  But  a  horse,  saddle  and  bridle  are  kept  for  common  and  ordinary 
use,  and  a  benefit  and  profit  is  derived  to  the  owner  from  their  use." 


§  452.  WHAT   CONSTITUTES  AN   ATTACHMENT.  417 

exempt  property.^  There  are  many  articles  of  personal 
property  subject  to  attachment  under  our  laws  and  usages 
which  could  not  have  been  distrained  or  taken  at  common 
law  under  the  rule  as  stated  in  the  earliest  authorities.  But 
in  the  absence  of  any  proof  of  usage  or  custom,  from  which 
it  may  be  inferred  that  a  different  rule  of  law  has  been 
adopted,  the  case  will  fall  within  the  principles  on  which  the 
English  authorities  rest,  and  must  be  governed  by  them.^ 

2.    What  essential  to  constitute  an  attachment. 

§  452.  The  word  attach  derived  remotely  from  the 
Latin  attmgo,  and  more  immediately  from  the  French  attacher, 
signifies  to  take  or  touch.  The  object  of  attachment  is  to  take 
out  of  the  defendant's  possession,  and  to  transfer  to  the 
custody  of  the  law,  acting  through  its  officer,  the  goods 
attached,  that  they  may  if  necessary  be  seized  on  execution, 
and  be  disposed  of  and  delivered  to  the  purchaser.  From 
both  of  these  considerations  it  is  apparent  that  to  attach 
is'  to  take  the  actual  possession  of  property.  It  is  not 
perhaps  necessary  in  any  case  that  the  officer  should  touch 
the  goods.*     But  to  constitute  a  legal  attachment,  he  must 

'  Lockwood  V.  Younglove,  27  Barb.  505. 

=  Mack  V.  Parks,  8  Gray,  517 ;  Potter  v.  Hall,  3  Pick.  368. 

*  The  return  "attached"  where  goods  belong  to  a  stranger,  renders  the 
officer  liable ;  touching  or  removal  not  being  essential  (Paxton  v.  Steckel,  2 
Barr.  93).  Hart  v.  Hyde,  5  Vt.  338,  was  an  action  of  trespass  brought  to  re- 
cover the  value  of  a  cooking  stove  and  pipe  which  had  been  attached  and  sold 
under  an  execution  in  favor  of  Hyde  against  Hart.  Hart  was  the  purchaser  of 
the  stove  at  the  sheriff's  sale.  The  stove  had  been  used  by  Hart  as  a  cooking- 
stove,  and  being  his  only  stove  was  exempt  from  seizure  and  sale  by  the  statute. 
About  three  months  previous  to  the  attachment.  Hart  had  temporarily  suspended 
house  keeping,  and  placed  the  stove  in  the  possession  of  one  Lewis,  v/ho  was  to 
keep  it  and  pay  for  the  use  of  it,  until  it  should  be  called  for  by  Hart.  When 
the  stove  was  attached,  Lewis  receipted  it  to  the  officer,  and  retained  the  posses- 
sion and  use  of  it,  until  it  was  sold  on  the  execution,  when  he  also  receipted  it 
to  Hyde,  and  still  continued  to  use  it.  The  stove  was  not  removed  or  in  any 
manner  disturbed.  After  the  sale,  but  before  the  commencement  of  the  action, 
Hart  called  on  Lewis  for  tlie  stove  who  declined  to  surrender  it.  Phelps,  J. : 
"It  is  insisted  that  no  act  of  the  defendant  appears  in  the  case,  which  amounts 
in  law  to  a  trespass.  But  we  are  all  agreed,  that  the  act  of  the  sherilf,  in 
assuming  the  custody  and  control  of  the  property,  was  clearly  a  trespass;  and  if 
done  by  the  direction  of  the  defendant,  was  a  trespass  in  him.  There  was  a 
literal  taking  of  the  property — a  seizure  on  the  attachment,  as  also  on  the 
execution,  and  the  placing  it  under  the  control  of  a  third  person  to  the  ex- 
clusion of  the  plaintiff. 

Vol..  L—  37 


418       TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  452, 

liave  the  custody  or  control  of  them,  either  by  himself 
or  his  servants,  in  such  a  way  as  to  exclude  all 
others,  or  at  least  to  give  timely  and  unequivocal  notice  that 
he  has  taken  possession.^  An  officer  for  the  purpose  of 
attaching  a  wagon,  went  with  a  writ  of  attachment  within 
five  or  ten  rods  of  the  wagon,  which  was  then  in  the  road 
in  full  view.  He  did  not  go  to  the  wagon,  or  remove  it, 
or  send  any  one  to  do  so,  or  to  keep  control  of  it,  nor  give 
notice  to  any  one,  but  went' away  to  attach  other  property, 
and  did  not  return  until  an  hour  or  more.  In  the  mean 
time,  a  person  in  good  faith,  and  without  notice,  had  bought 
the  wagon  of  ,the  owner,  and  taken  possession  of  it.  It  was 
held  in  an  action  of  trespass,  by  the  oflScer  against  the 
purchaser,  for  the  wagon  that  the  defendant  was  entitled  to 
hold  it.^  In  an  action  of  trespass  for  attaching  and  carrying 
away  a  barouche  and  harness,  it  appeared  that  the  plaintifi:" 
who  was  ati  ofiicer,  went  to  a  carriage  house,  unlocked  the 
door,  and  at  the  same  time  announced  that  he  attached  the 
property  within  ;  but  that  the  defendant,  who  was  also  an 
officer  with  an  attachment,  arriving  at  the  door,  as  soon  as  it 
was  opened  sprang  in  and  seized  the  barouche  before  the 
other  had  actually  touched  it.  A  verdict  having  been  found 
for  the  plaiutifl:'  in  the  court  below,  the  Supreme  Court 
granted  a  new  trial,  holding  that  as  the  defendant  obtained 
actual  possession  of  the  property,  he  had  a  right  to  take  it 
away  under  his  attachment,  which  thereby  had  priority.^  * 


'  Lane  v.  Jackson,  5  Mass.  157;  Train  v.  Wellington,  12  lb.  495;  Lyon  v. 
Rood,  12  Vt.  233. 

'  Fitch  V.  Rogers,  7  Vt.  403 ;  and  see  Blake  v.  Hatch,  25  lb.  555. 

=  HoUister  v.  Goodale,  8  Conn.  332. 

*  In  an  action  of  trespass  de  bonis  aspartate,  it  appeared  that  the  plaintiff, 
who  was  a  tax  collector,  having  a  tax  against  the  defendant,  went  to  a  farm 
which  had  then  recently  been  owned  by  the  defendant,  but  which  he  had  sold 
to  one  Smith,  who  then  lived  on  the  farm,  and  informed  Smith  that  he  had 
distrained  the  grain  and  other  property  belonging  to  the  defendant,  for  the 
defendant's  taxes.  The  grain,  which  had  just  been  thrashed,  lay  in  piles  about 
the  barn  and  granary;  and  the  plaintiff  after  examining  the  property,  left  it 
without  removing  it,  or  in  any  way  interfering  with  it.  He,  however,  requested 
Smith  to  keep  it  for  him,  which  Smith  declined  to  do ;  but  he  agreed  to  notify 
the  defebdant  of  the  distress,  when  the  latter  returned,  and  did  so.  The 
defendant   having  used   and   disposed  of  the   property,  it   was   held  that  the 


§  452.  WHAT    CONSTITUTES   AN   ATTACHMENT.  410 

In  Turner  v.  Austin/  it  was  lield  that  no  overt  act  of  the 
sheriff  was  necessary  to  constitute  an  attachment  of  prop- 
erty previously  in  his  custody  on  another  attachment.  But 
there,  the  sheriff  already  had  the  actual  custody;  and 
mere  form  or  ceremony  for  form's  sake,  and  not  for  the 
preservation  of  substance,  is  never  required.  In  Denny  v. 
Warren,^  an  officer  who  entered  a  store  to  attach  goods 
where  there  was  no  competition,  received  the  key  from  the 
clerk  and  locked  the  store,  declaring  his  intention  to  attach, 
was  held  to  have  made  a  sufficient  attachment.  In  Naylor 
V.  Dennie,^  inaccessible  goods  in  the  hold  of  a  ship  were 
attached  by  the  officer's  going  on  board  and  leaving  a  keeper 
to  take  care  of  them.  And  in  Merrill  v.  Sawyer,*  it  was 
held  that  hay  in  a  barn  was  duly  attached  by  putting  a 
notice  of  the  attachment  on  the  barn  door.  All  of  these 
cases  were  determined  upon  the  principle,  that  actual  posses- 
sion and  custody  are  necessary  to  constitute  an  attachment ; 
although  there  being  no  race  for  priority  of  attachment, 
they  held  that  to  be  the  actual  custody  and  possession 
which  perhaps  was  only  constructive  possession.''^ 

plaintifE  had  not  acquired  a  sufficient  possession  of  it  to  maintain  tlie  action. 
(Dodge  V.  Way,  18  Vt.  457.) 

'  16  Mass.  181.  ^  16  Mass.  420;  S.  P.  Gordon  v.  Jenney,  lb.  465. 

^  8  Pick.  198.  "  8  Pick.  397. 

*  In  Vermont,  after  the  attachment,  the  officer  is  required  to  give  notice  to- 
the  debtor,  by  delivering  a  copy  before  the  time  of  service  is  out,  or  he  will  be- 
considered  as  abandoning  the  attachment,  and  may  perhaps  be  treated  as  a 
trespasser  ab  initio.  Between  the  time  of  attaching  and  delivering  the  copy, 
the  officer  is  considered  as  having  a  title  to  the  property,  and  his  possession  as 
legal  against  all  others.  When,  however,  hay  or  grain  is  attached,  the  officer 
may  leave  a  copy  with  the  town  clerk ;  and  this  is  equivalent  to,  and  declared  to 
be  as  effectual  as  if  such  property  had  been  actually  removed  and  taken  into  the 
possession  of  such  officer.  He  is  considered  as  having  the  constructive  posses- 
sion, and  as  having  a  sufficient  title  and  possession  to  maintain  an  action  there- 
for against  any  one  who  removes  or  converts  the  same.  It  is  not  necessary  for 
the  officer  to  go  to  the  place  where  the  property  is  situated  to  make  the  attach- 
ment. Leaving  a  copy  with  the  town  clerk  is  the  act  of  attaching  and  taking 
possession,  and  giving  notice  to  all  concerned.  A  constable  having  at- 
tached hay  and  grain,  by  leaving  a  copy  with  the  town  clerk,  and  having 
perfected  his  attachment  by  giving  the  debtor  a  copy,  and  a  judgment  having 
been  rendered  thereon,  and  the  execution  having  been  issued  and  delivered  to 
an  officer  in  season  to  charge  the  property;  it  was  held  that  he  had  such  a  title 
and  possession  as  were  sufficient  to  enable  him  to  maintain  an  action  of  trespass 
against  another  officer,  who  after  the  leaving  of  the  copy  in  the  town  clerk's 
office,  and  before  the  copy  was  delivered  to  the  debtor,  attached  and  removed 


420       TAKING  PERSONAL  PROPERTY  BY  OFFICER.    §  454. 

§  453.  An  officer  in  attaching  j^roperty  is  not  bound,  in 
order  to  avoid  the  implication  of  fraud,  to  secure  the  goods 
against  depredators.  The  fact  that  an  action  of  trespass 
may  be  supported  by  him,  by  virtue  of  his  lien,  presupposes 
the  right  to  leave  the  property  in  a  situation  to  be  eloigned 
by  a  mere  act  of  trespass.^  Although  the  attaching  of 
goods  in  a  building,  by  taking  exclusive  possession  of  the 
building,  and  excluding  the  owner,  might  be  regarded  as  a 
trespass  ah  initio  as  respects  the  owner,  yet  the  attachment 
would  be  valid.^ 

3.    When  personal  property  hound  hy  levy. 

§  454.  To  constitute  a  valid  levy,  the  officer  must  enter 
on  the  premises  where  the  goods  are,  and  take  possession  of 
them,  if  that  be  practicable ;  if  not,  then  he  must  openly 
and  unequivocally  assert  his  title  to  them  by  virtue  of  his 
execution.^  But  it  is  not  essential  to  the  validity  of  the  levy 
that  the  sheriff  take  actual  possession  of  the  goods,  or  that 
he  remove  them  from  the  custody  of  the  debtor.  The  test 
of  a  valid  levy  is  whether  enough  has  been  done  to  subject 
the  officer  to  an  action  of  trespass  except  for  the  protection 
of  the  execution.  In  Roth  v.  Wells  *  it  appeared  that  the 
sheriff  went  to  the  plaintiff's  store,  saw  the  goods,  asserted 

the  same  property  (Putnam  v.  Clark,  17  Vt.  82).  Stanton  v.  Hodges,  6  Vt.  64, 
was  an  action  of  trespass  for  taking  and  using  up  hay  and  grain  which  the 
plaintiff  as  deputy  sheriff  had  attached  on  a  writ  against  the  defendant, 
and  which  the  plaintiff  did  not  remove,  but  left  copies  agreeably  to  the  statute. 
It  was  insisted  that  the  action  could  not  be  maintained,  for  the  reason  that  the 
plaintiff  did  not  take  actual  possession  of  the  property.  The  court  said:  "  The 
object  of  the  statute  is  quite  apparent,  viz:  to  prevent  waste  in  the  removal; 
and  it  is  idle  to  say,  that  the  defendant,  though  he  cannot  sell  the  property,  and 
though  it  cannot  be  attached,  may  consume  or  waste  it  with  impunity.  Nor  is 
this  inconsistent  with  general  principles.  The  officer  is  responsible  for  the  safe 
keeping  of  the  property.  The  statute  provides  that  nothing  in  the  act  shall  be 
construed  to  prevent  the  officer  from  removing  the  property  where  he  shall 
think  proper.  The  officer  has  thus  a  lien,  or  special  property,  with  the  right  of 
immediate  possession,  and  may  therefore  maintain  the  action "  (Referring  to 
Lowry  v.  Walker,  4  Vt.  76). 

'  Newton  v.  Adams,  4  Vt.  437.  '  Ibid. 

'  Haggerty  v.  Wilber,  16  Johns.  287;  Beekman  v.  Lansing,  3  Wend.  446; 
Westervelt  v.  Pinckney,  14  lb.  123;  Green  v.  Burke,  23  lb.  490;  Camp  v. 
Chamberlain,  5  Denio,  198;  Barker  v.  Binninger,  14  N.  Y.  R.  270. 

'  29  N.  Y.  R.  471. 


§  455.   wo  EN  PERSONAL  PROPERTY  BOUND  BY  LEVY.     421 

his  right  to  them  by  virtue  of  his  levy,  in  the  hearing  of  one 
of  the  plaintiffs,  and  subsequently,  the  fact  that  a  levy  had 
been  made  was  indorsed  on  the  executions,  and  it  was  held 
that  the  sheriff  had  done  all  that  was  required  to  perfect  a 
lien  on  the  debtor's  goods.^  In  Copley  v.  Rose  ^  it  was  held 
that  the  defendant's  saying  that  he  had  levied  on  the  prop- 
erty of  the  plaintiff,  showing  the  execution  by  virtue  of 
which  he  acted,  and  insisting  on  the  levy,  was  sufficient  evi- 
dence that  the  defendant  had  exercised  such  dominion  over 
the  property  as  would  make  him  a  trespasser.* 

§  455.  Where  a  sheriff  has  seized  goods  under  one  exe- 
cution, and  another  execution  against  the  same  defendant  after- 
ward comes  to  his  hands,  the  seizure  under  the  first  inures  by 
way  of  constructive  levy  for  the  benefit  of  the  second.'^  In  Rus- 
sell V.  Gibbs  "*  this  doctrine  was  applied,  though  after  the  first 
levy  and  before  the  receipt  of  the  second  execution,  the  goods 
were  removed  out  of  the  State,  and  remained  there  until 
the  return  day  of  the  second  execution  had  passed.  The 
principle  is  this: — The  object,  as  well  as  the  effect  of  an 
actual  levy,  is  to  bring  the  goods  into  the  possession  and 
under  the  control  of  the  sheriff  for  the  double  puq^ose  of  safe 
keeping  and  to  enable  him,  by  a  sale,  to  apply  the  proceeds 
in  payment  of  the  debt.  After  seizure,  they  are  in  the 
custody  of  the  law,  or  of  one  of  its  ministers,  until  a  sale 
and  delivery  to  the  purchaser.  An  actual  levy  under  the 
second  execution  would  therefore  be  but  an  idle  formality. 


'  See  Eay  v.  Harcourt,  19  Wend.  495;  Van  Wyck  v.  Pine,  2  Hill,  666. 

"  2  Comst.  115. 

=  Birdseye  v.  Ray,  4  Hill,  158;  aff'd  5  Denio,  619. 

*  5  Cowen,  390. 

*  In  general,  in  case  of  levy  or  seizure,  the  officer  merely  gives  notice  to  the 
party,  who  procures  a  receiptor.  The  latter  seldom  interferes,  and  often  never 
sees  the  goods,  and  tiie  officer  may  or  may  not  make  an  inventory.  But  all  par- 
ties understand  that  the  goods  are  seized  and  in  custody  of  the  lav?;  though 
perhaps  the  execution  is  [)aid  without  the  least  actual  interruption  of  the  owner's 
use;  and  it  is  entirely  clear  that,  in  the  absence  of  right  or  authority  on  the  side 
of  the  officer,  he  would  Ijc  liul>le  in  trespass.  So,  if  the  goods  are  left,  either 
because  they  cannot  be  removed,  or  because  the  officer  deems  them  safe  where 
they  are,  or  imagines  that  they  are  replevied,  the  owner  who  sues  him  is 
not  to  be  embarrassed  by  the  objection  that  a  trespass  has  not  been  committed. 


422  TAKING    PERSONAL    PROPERTY   BY   OFFICER.  §  457. 

§  456.  Ou  an  execution  against  one  of  two  partners, 
joint  tenants,  or  tenants  in  common,  tlie  officer,  in  levying 
upon  their  joint  effects,  seizes  not  the  mere  moiety  or  share 
of  the  defendant  in  the  execution,  ])ut  the  whole  of  the 
common  interest — the  coi'pus  of  the  joint  estate — thus 
bringing  it  under  his  exclusive  control.^  The  officer  acquires 
such  a  special  property  in  the  goods  that  he  can  maintain 
trespass  or  trover  for  them  against  all  persons  save  perhaps 
the  copartner  or  cotenant.-  In  Bachurst  v.  Clinkard  ^  it  was 
held,  that  if  the  goods  of  two  partners  be  taken  upon 
execution  against  one,  and  an  execution  against  the  other 
partner  be  subsequently  received  by  the  sheriff,  he  is  bound 
to  hold  them  seized,  one  moiety  for  the  execution  against 
one  partner,  and  the  other  moiety  for  the  execution  against 
the  other  partner ;  and  if  he  return  the  second  writ  nulla 
bona,  he  w^ill  render  himself  liable  for  a  false  return. 
Where  an  officer  having  an  execution  against  A.  &  B. 
indorsed  with  directions  to  levy  on  their  joint  property, 
seizes  the  separate  property  of  one  of  them,  such  property 
will  not  be  deemed  to  be  in  the  custody  of  the  law,  so  as 
to  prevent  its  being  taken  under  process  issued  by  another 
creditor.* 

§  457.  A  levy  upon  goods  which  the  debtor  possessed 
at  the  time  of  the  levy,  cannot  operate  constructively  as  a 
levy  upon  goods  subsequently  acquired  by  the  debtor  which 
were  never  seen  by,  nor  within  the  power  of  the  levying 
officer  during  the  life  of  the  execution.^  Where,  however, 
it  appeared  that  the  plaintiff  had  sold  part  of  the 
goods  which  had  been  levied  upon ;  that  other  goods  of  the 
same  general  description  had  been  j^urchased  by  him  and 
put  in  the  places  from  which  the  other  goods  had  been 
taken,  and  that  he  had  neglected,  after  request,  to  designate 

'  Phillips  V.  Cook,  34  Wend.  389. 

''Coll.  on  Part.  474;  Watson  on  Sheriffs,  18,  191;  Heydon  v.  Heydon,  1 
Salk.  392. 

=  1  Show.  173.  "  Sherry  v.  Schuyler,  2  Hill,  204. 

'  Roth  V.  Wells,  29  N.  Y.  471. 


§457.       WHEN   PERSONAL   PROPERTY   BOUND   BY   LEVY.  423 

the  goods  on  whicli  the  levy  was  made,  it  was  held  that 
such  substituted  goods  were  liable  on  the  execution.  The 
substituted  goods  became  liable,  because  the  plaintiff  hav- 
ing voluntarily  mingled  goods  not  liable  to  be  sold,  with 
those  that  were  liable,  he  could  not  maintain  an  action  against 
the  officer  for  selling  such  substituted  goods.^  To  permit  an 
action  to  be  maintained  under  such  circumstances  would 
be  a  fraud  upon  both  the  officer  and  the  party  whose  pro- 
cess he  held.^  * 

•     '  Ante,  §  405.  '  Roth  v.  Wells,  supra. 

*  At  common  law,  the  writ  of  fieri  facias  bound  the  goods  of  the  debtor  from 
the  time  the  writ  was  tested,  which  often  preceded  by  a  whole  vacation  the 
time  of  its  delivery  to  the  sherifl'.  This  effect  given  to  the  writ  by  relation  often 
operated  very  unjustly,  especially  as  against  hona  fide  2)ur chasers;  and  to  prevent 
that  evil,  it  was  declared  by  the  statute  of  frauds,  29  Car.  2,  ch.  3,  §  16,  that 
goods  should  be  bound  only  from  the  time  when  the  writ  should  be  delivered  to 
the  sheriff  to  be  executed.  That  statute  was  early  re-enacted  iu  New  York  (1 
Rev.  L.  501,  §  6) ;  and  by  the  New  York  Revised  Statutes  of  1830,  the  protec- 
tion of  lonafide  purchasers  was  further  extended  to  the  time  of  actual  levy  (N. 
Y.  Rev.  Sts.  5th  ed.  vol.  3,  p.  645,  §  17).  These  provisions  are  continued  in 
force,  and  are  applicable  to  executions  against  property  under  the  New  York 
Code  (N.  Y.  Code,  §§  286,  289).  In  New  York,  therefore,  the  goods  of  the  de- 
fendant in  an  execution,  as  against  him,  are  "bound  from  the  time  of  the  de- 
livery of  the  execution  to  the  sheriff,  to  be  executed"  (3  N.  Y.  Rev.  Sts.  5th  ed. 
p.  644,  §  13) ;  and  the  reason  upon  which  this  rule  is  founded  extends  the  lien 
to  all  goods  acquired  by  the  defendant  within  the  jurisdiction  of  the  sheriff 
during  the  life  of  the  execution.  This  lien  is  created  by  law  for  the  benefit  and 
security  of  the  plaintiff;  it  cannot  be  defeated  by  any  act  of  the  defendant  short 
of  a  sale  to  a  lonafide  purchaser;  and  it  is  not  lost  by  the  neglect  of  the  sheriff 
to  levy  upon  or  to  take  the  goods  into  his  custody  during  the  life  of  the  execu- 
tion, but  mav  afterward  be  enforced  by  the  sheriff,  without  such  prior  levy 
(Roth  V.  Wells,  29  N.  Y.  R.  471,  per  Selden,  J.,  citing  1  Saund.  219  e,  note  t  ; 
Ray  V.  Birdseye,  5  Den.  619;  Hotchkiss  v.  McVickar,  12  Johns.  403). 

In  Lambert  v.  Paulding,  18  Johns.  311,  a  sloop  had  been  removed  by  the  de- 
fendant in  an  execution,  from  the  city  and  county  of  New  York  to  the  county 
of  Westchester,  after  the  delivery  of  the  execution  to  the  sheriff  of  New  York, 
and  before  any  levy.  The  next  day  after  the  removal,  the  sheriff  of  Westchester 
levied  upon  the  sloop  by  virtue  of  an  execution  in  favor  of  another  plaintiff 
against  the  same  defendant;  and  having  afterward  sold  her,  he  was  ordered,  on 
motion  made  in  behalf  of  the  plaintiffs  in  the  first  execution  to  pay  the  proceeds 
of  the  sale  to  them — such  proceeds  being  less  than  the  amount  of  their  execu- 
tion. The  court  said  :  "The  delivery  of  the  fieri  facias  to  the  sheriff  of  the 
city  and  county  of  New  York,  bound  the  goods  of  the  defendant  then  in  his 
bailiwick,  and  the  plaintiffs  in  that  execution  cannot  be  deprived  of  tl)e  lien  on 
the  sloop,  which  was  then  lying  in  New  York,  by  the  act  of  the  defendant  in 
removing  the  vessel  into  another  county.  He  would  be  liable  to  an  action  at  the 
suit  of  the  sheriff  for  so  removing  the  property."  In  Roth  v.  Wells,  supra, 
Selden,  J.,  referring  to  the  foregoing  case,  said:  "As  the  lien  could  be  en- 
forced only  through  the  action  of  tlie  sheriff,  he  had,  I  think,  a  right,  by  virtue 
of  it  as  against  the  defendant,  to  seize  and  sell,  after  the  expiration  of  the  exe- 
cution, any  property  upcm  whicii  such  lien  may  have  attached,  although  no 
previous  actual  levy  liad  been  made.  The  deatli  of  the  defendant  after  the  is- 
suing of  an  execution  and  before  a  levy,  does  not  prevent  the  sheriff  from  seiz- 


424  TAKING    PERSONAL    PROPERTY   BY   OFFICER.  §  458. 

§  458.  Although  the  leaving  of  goods  by  an  officer,  after 
levying  upon  them,  in  the  possession  of  the  debtor,  may  ren- 
der the  officer  answerable  to  the  creditor,  or  involve  him  in 
difficulty  with  third  persons,  yet  it  will  not  constitute  an 
abandonment  of  the  levy,  so  far  as  the  debtor  himself  is  con- 
cerned. As  to  him  the  property  is  still  in  the  custody  of 
the  law,  and  the  officer  may  come  again  at  pleasure  to  com- 
plete the  execution  of  the  process.-^  The  removal  of  prop- 
erty out  of  one  State  into  another  by  an  attaching  creditor, 
to  whom  the  same  has  been  delivered  for  safe  keeping  by 
the  attaching  officer,  does  not  dissolve  the  attachment.^  * 


ing  and  selling  the  goods  of  the  defendant  after  his  death,  '  for,  by  the  execution 
awarded,  the  goods  are  bound.'  If  the  goods  are  bound  after  the  death  of  the 
defendant,  and  after  removal  from  the  county  without  levy,  they  must  be  equally 
bound  after  the  return  day  of  the  writ.  The  spirit  of  the  rule  which  declares 
execution  to  be  the  life  of  the  law,  and  which  creates  the  lien  without  a  levy, 
requires  the  continuance  of  such  lien  after  the  return  day.  so  long  as  the  rights 
of  purchasers  or  of  other  creditors  do  not  intervene.  It  is  the  duty  of  the 
defendant  to  satisfy  the  execution  as  well  after  the  return  day  as  before,  and  no 
wrong  can  be  done  to  him  by  continuing  the  lien  which  has  once  attached  upon 
his  goods,  until  he  makes  such  satisfaction.'' 

■  Glover  v.  Whittenhall,  6  Hill,  597.  '  Utley  v.  Smith,  7  Vt.  154. 

*  This  was  an  action  of  trespass  for  taking  certain  articles  of  personal  property. 
On  the  trial,  in  the  court  below,  it  was  proved  that  the  property  had  been  at- 
tached, at  the  suit  of  the  plaintiff,  in  the  State  of  Nevv  York,  as  belonging  to 
one  Hartwell,  and  by  the  attaching  officer  there  delivered  to  the  jilaintiff,  he 
agreeing  to  redeliver  the  same  on  demand,  or  account  for  it  to  the  officer,  and 
that  the  officer  should  not  be  liable  to  the  plaintiff  if  the  property  should  not  be 
returned.  The  plaintiff  carried  the  property  into  Vermont,  and  before  the 
return  day  of  the  attachment  the  defendant  took  the  property  from  the  plaintiff 
on  attachment  against  Hartwell,  retui'nable  in  Vermont.  The  judge  directed  a 
verdict  for  the  defendant,  on  the  ground  that  the  lien  both  of  the  officer  and  the 
plaintiff",  occasioned  by  the  attachment  in  New  York,  was  discharged  by  carry- 
ing the  property  into  Vermont,  and  that  it  was  thereby  made  liable  to  attachment 
as  the  property  of  Hartwell.  The  Snp^^'"^  Court,  in  reversing  the  judgment,  said : 
"  This  property  was  legally  attached  in  New  York,  and  a  qualified  property  there- 
by created  in  the  officer  to  the  property,  for  which  he  was  liable  to  the  plaintiff 
to  answer  the  debt,  or  to  Hartwell,  if  the  attachment  was  otherwise  discharged. 
It  is  obvious  that  this  liability  of  the  officer  would  continue  both  to  the  plaintiff 
and  Hartwell,  though  the  officer  or  his  agent  should  convey  the  property  into 
another  State;  and  if  his  liability  would  continue,  it  is  difficult  to  see  why  his 
qualified  property,  thus  legally  created,  should  not  also  continue  and  be  recog- 
nized in  a  sister  State.  The  legal  possession  being  in  the  officer,  he  may  deliver 
it  to  another  for  safe  keeping,  who  thereby  has  the  legal  possession,  the  inva- 
sion of  which  is  a  trespass.  The  condition  in  the  plaintiff's  receipt,  that  he 
would  return  the  property  to  the  officer  on  demand,  and  that  the  officer  should 
not  be  liable  to  the  plaintiff  if  the  property  should  not  be  returned,  does 
not  alter  the  case,  as  such  w-ould  have  been  the  effect  had  the  receipt  been  silent 
on  the  subject.  The  remaining  question  is,  inasmuch  as  the  property  was  deliv- 
ered to  the  attaching  creditor,  and  was  taken  by  the  creditors  of  the  owner,  is 
not  the  officer  discharged  from  both,  and  so  his  qualified  property  ended,  on  the 


§  459.   WHEN  PERSONAL  PROPERTY  BOUND  BY  LEVY.     425 

§  459.  The  right  to  attach  and  levy  upon  the  property  of 
a  debtor  pertains  to  the  remedy,  and  depends  upon  the  law 
of  the  place  where  the  property  is  found  and  attached.^  For 
instance,  if  a  debtor's  property  of  a  certain  kind,  and  to  a 
certain  amount  which  is  exempt  from  attachment  and  levy 
by  the  law  of  one  State,  is  taken  into  another,  it  is  liable  to 
attachment  in  the  latter,  unless  exempt  by  its  law.  It  was 
accordingly  held,  in  Vermont,  that  a  person's  only  cow  could 
not  be  taken  on  attachment  or  execution,  notwithstanding 
the  owner  of  the  cow  lived,  in  Canada,  and  the  cow  had 
strayed  therefrom  into  Vermont.^  *     In  Kice  v.  Courtis,^  the 

ground  that  the  creditor  can  never  claim  of  him,  as  he  took  the  property  and 
never  returned  it,  and  the  debtor  can  have  no  claim,  as  his  creditors  took  and 
legally  held  it?  This  question  may  first  be  considered  as  unconnected  vpith  any 
change  of  the  property  from  one  to  another  jurisdiction.  It  has  ever  been  the 
practice  in  this  State,  that  the  officer  makes  the  attaching  creditor  keeper  of  the 
property,  if  he  is  a  responsible  man  and  willing  to  undertake  the  trust.  If  the 
above  doctrine  be  true,  the  debtor  might,  in  such  case,  take  the  property  from 
the  creditor  with  entire  impunity.  This  proves  too  much,  and  is  inconsistent. 
In  the  second  place,  this  attaching  officer's  liabilities  were  not  ended.  If,  after 
settling  the  plaintiffs  debt,  Hartwell  should  call  for  his  property,  it  would  not 
be  a  defense  for  the  officer  or  the  plaintiff  to  say  that  they  had  removed  the 
property  to  another  State  where  it  was  subject  to  different  process,  and  exposed 
in  a  different  market,  and  there  it  was  taken  by  other  creditors.  The  responsi- 
bility and  qualified  property  in  the  officer  continued,  and  therefore  this  action 
may  be  sustained." 

'  Story  on  Confl.  of  Laws,  462. 

'  Haskill  V.  Andros,  4  Vt.  609.  '  33  Vt.  460. 

*  In  this  case,  the  court  said:  "It  has  been  correctly  urged,  that  the  law  of 
the  place  where  a  remedy  is  attempted  to  be  enforced  must  always  govern  the 
proceedings  had  to  enforce  the  remedy.  Whatever  remedy  our  laws  give  to  en- 
force the  performance  of  a  contract,  will  equally  avail  the  citizen  or  the  foreigner; 
and  they  equally  must  be  subject  to  any  restraints  which  the  law  imposes  upon 
them.  Our  inhabitants  can  have  no  greater  rights  in  enforcing  a  claim  against  a 
foreigner  tlian  an  alien  can  have  in  enforcing  a  similar  claim  against  one  of  our 
own  citizens.  Whoever  submits  himself  or  his  property  to  our  jurisdiction, 
must  yield  to  all  the  requirements  which  are  made  of  our  citizens  in  relation  to 
the  collecting  of  debts  or  maintaining  suits,  and  is  clearly  entitled  to  all  the 
benefits,  exemptions  and  privileges  to  which  other  debtors  or  suitors  belonging 
to  our  State  are  subject  or  entitled.  If  the  one  can  hold  a  cow,  suitable  wearing 
apparel  and  necessary  household  furniture,  without  having  the  same  taken  from 
him  by  execution,  so  can  the  other.  Nothing  short  of  the  express  language  of 
a  statute  would  justify  us  ip  saying  that  a  person  may,  by  virtue  of  au  execu- 
tion, be  stripped  of  his  wearing  apparel,  his  necessary  household  furniture  and 
his  only  cow,  merely  because  he  resides  under  another  government,  when  a  per- 
son residing  here  would  not  be  subject  to  the  same  inconvenience  and  distress." 

Wliere  in  an  action  of  trespass,  brought  to  recover  the  value  of  a  quantity  of 
intoxicating  liquor  claimed  by  the  plaintitt",  and  which  was  taken  by  the  defend- 
ant by  attachment,  on  a  writ  against  a  third  person,  it  was  urged,  in  behalf  of 
the  defendant,  that  the  court  below  was  wrong  in  charging  the  jury  that  if  the 
liquor  was  purchased  by  the  plaintifl'  in  New  York,  with  the  intent  to  sell  it  in 


426      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  460. 

question  presented  was  whether,  where  j^ersoual  property- 
had  been  assigned  for  the  benefit  of  creditors  by  an  act  done 
legally  out  of  the  State,  any  change  of  possession  was  requi- 
site in  Vermont,  in  order  to  place  it  beyond  the  reach  of 
j)rocess  of  the  Vermont  courts  against  the  assignor.  It  was 
urged  that  such  a  change  of  possession  was  required,  in  order 
to  perfect  the  assignment  when  made  out  of  the  State,  be- 
cause it  was  a  rule  of  policy  uniformly  required  in  the  trans, 
fer  of  all  personal  property  within  the  State  as  a  visible 
index  of  its  being  no  longer  liable  uj)on  process  against  the 
former  owner ;  that  it  was  no  part  of  the  contract  of  assign- 
ment to  be  controlled  by  the  law  of  the  place  of  assignment, 
but  a  matter  purely  of  local  policy,  to  prevent  fraud,  and 
therefore  not  a  matter  to  be  controlled  by  the  contract, 
or  by  the  law  governing  the  contract,  but  a  local  form  or 
act  to  be  governed  by  the  law  of  the  forum  where  the  prop- 
erty was  situated  and  the  remedy  sought.  It  was  held,  that 
the  requirement  of  a  change  of  possession  in  the  transfer  of 
personal  j)roperty,  in  order  to  put  it  beyond  the  reach  of  the 
process  of  the  State  courts,  against  the  former  holder,  was  a 
matter  so  far  afl^ecting  the  settled  policy  of  the  jurisprudence 
of  Vermont  on  the  subject,  that  it  could  not  be  dispensed 
with  out  of  deference  or  comity  to  the  law  of  any  other 
State.* 

§  460.  Whether  goods  carried  from  one  State  into 
another  by  a  debtor  are  to  be  regarded  as  his  property  for 
the  purposes  of  attachment  and  levy,  or  the  property  of  a 

New  Hampshire  in  violation  of  the  law  of  that  State,  and  was  on  its  way  across 
Vermont  to  New  Hampshire  for  the  purpose  of  being  so  sold,  that  would  not 
prevent  the  plaintiff's  recoveiy  against  a  mere  trespasser,  the  Supreme  Court  said  : 
"  There  is  nothing  in  the  laws  of  this  State  that  prohibits  the  inhabitants  of  any 
of  the  other  States  from  transporting  intoxicating  liquor  across  this  State  to  an 
adjoining  State,  even  though  with  the  intent  to  sell  it  in  violation  of  the  laws  of 
such  adjoining  State.  It  is  no  violation  of  the  law  here,  and  the  courts  of  this 
State  are  not  called  upon  to  protect  the  inhabitants  of  New  Hampshire  against 
the  violation  of  their  laws  "  (Harrison  v.  Nichols,  81  Tt.  709). 

*  Although  where,  in  an  action  for  taking  property,  the  defendant  justifies 
•under  an  attachment  issued  in  another  State,  it  is  incumbent  upon  him  to  show 
that  the  process  was  according  to  the  law  of  that  State ;  yet  if  the  objection  be 
not  made  at  the  trial,  it  will  be  deemed  waived  (Doane  v.  Eddy,  16  Wend.  533). 


§  460.   WHEN  PERSONAL  PROPERTY  BOUND  BY  LEVY.     427 

mortgagee  who  has  acquired  a  lieu  ou  theui  by  the  law  of 
the  place  of  the  contract,  does  uot  seem  entirely  settled.  In 
Cobb  V.  Buswell/  the  plaintiff  claimed  title  to  certain  per- 
sonal property,  for  which  the  action  was  brought,  under 
three  chattel  mortgages  from  one  Wooster  to  him.  The  de- 
fendant justified  the  taking  under  writs  of  attachment  and 
executions  against  Wooster.  It  was  admitted  that  the  mort- 
gages were  regularly  executed  and  recorded  according  to  the 
laws  of  New  Hampshire,  where  the  parties  lived,  and  where 
the  property  was  then  situated,  and  that  by  the  statute  of 
New  Hampshire,  the  plaintiff  might  let  the  property  remain 
in  the  possession  and  use  of  the  mortgagor  without  rendering 
it  liable  to  attachment  as  the  mortgagor's  property.  The 
question  was  whether  the  taking  of  the  property  by  the 
mortgagor  into  Vermont  subjected  it  to  attachment  by  his 
creditors,  although  not  so  liable  under  the  laws  of  New 
Hampshire.  It  was  held  that  it  did  not,  and  that,  therefore, 
the  plaintiff  was  entitled  to  recover.*  The  case  of  Mont- 
gomery V.  Wight  ^  arose  between  a  mortgagee  under  a 
mortgage  executed  in  Canada,  and  an  attaching  creditor 
under  a  subsequent  attachment  in  Michigan.  The  mortgagor 
resided  in  Michigan,  and  owned,  and  was  in  possession  of  the 
horse  in  question,  at  Detroit.  He  subsequently  removed 
into  Canada,  and  took  the  horse  witli  him,  and  executed  the 
mortgage  in  Canada,  under  a  statute  by  whicli  the  mortgage 
was  valid  without  a  change  of  possession.  Afterward,  hav- 
ing lived  in  Canada  about  a  year,  he  took  the  horse  to 
Detroit,  to  be  trained,  and,  after  the  horse  had  been  there 
about  six  weeks,  it  was  attached  as    the   property   of  the 


•  37  Vt.  337.  "  8  Mich.  148. 

*  Woodward  v.  Gates,  9  Vt.  358,  involved  an  inquiry  into  the  validity  of  a 
chattel  mortgage  executed  in  New  Hampshire.  But  the  court  decided  the  case 
upon  the  ground  that  the  statute  of  New  Hampshire  regulating  mortgages  of 
personal  property  had  not,  in  that  case,  been  complied  with.  Williams,  Oh.  J., 
however,  in  delivering  the  opinion  of  the  court,  remarked  that  "The  only  re- 
maining question  is,  whether  the  statute  of  New  Hampshire  proiects  the  property 
of  the  plaintiff  against  tiie  attachment  of  the  defendants.  If  the  statute  had 
been  complied  with,  my  individual  opinion  is,  that  it  could  not  have  availed  the 
plaintiff.  The  property,  when  in  this  State,  was  subject  to  attachment  at  the 
suit  of  the  creditors  of  the  vendor,  so  long  as  his  possession  remained  unchanged." 


428  TAKING    PERSONAL    PROPERTY  BY   OFFICER.  §  461. 

mortgagor.  The  statute  of  Canada  required  the  mortgage  to 
contain  a  particular  description  of  the  property,  and  •  the 
court  held,  on  the  authority  of  decisions  of  the  Canadian  courts, 
that  the  mortgage  was  void  by  the  law  of  Canada,  as  against 
creditors,  for  want  of  a  more  particular  description  of  the 
property.  That  point,  they  held,  was  decisive  of  the  case. 
The  court,  however,  expressed  the  opinion  that  the  attach- 
ment would  still  have  j)revailed  if  the  mortgage  had  been 
valid  by  the  laws  of  Canada.* 

4.  Protection  afforded  to  officer  hy  process. 

§  461.  We  have  seen  ^  that  a  mere  ministerial  officer  who 
executes  the  process  of  a  court  having  jurisdiction  of  the  sub- 
ject-matter, and  authority  to  issue  such  process  in  general,  or 
in  certain  specified  cases,  is  protected  in  the  execution 
thereof,  when  it  is  regular  on  its  face  and  apparently  within 
the  jurisdiction  of  the  court  issuing  it.^  f     The  general  rule 


•  Ante,  §  334. 

'  See  Savacool  v.  Boughton,  5  Wend.  170;  Churchill  v.  Churchill,  13  Vt.  661; 
Parker  v.  Walrod,  13  Wend.  296;  affiN;!  16  Wend.  514;  Steel  agst.  Fish,  Brayt. 
230 ;  Reed  v.  Conway,  20  Mo.  22 ;  Hamilton  v.  Williams,  26  Ala.  527 ;  Keniston 
V.  Little,  10  Fost.  318;  State  v.  Weed,  1  lb.  262. 

*  In  determining  which  law  shall  govern,  the  domicil  of  the  contracting  par- 
ties at  the  time  of  the  contract,  the  place  of  the  contract,  and  the  situs  of  the 
property  at  the  time  ef  the  contract,  are  all  to  be  considered.  It  is  sometimes 
said  that  personal  property  has  no  situs,  and  for  some  purposes  it  is  true,  or, 
more  properly,  it  is  for  some  purposes  immaterial;  but  for  other  purposes,  and 
as  applicable  to  questions  of  this  character,  the  actual  sittbs  of  the  property  is  not 
to  be  disregarded.  Much  of  the  conflict  in  the  decisions  on  this  subject  has 
arisen  from  the  different  effect  different  courts  have  given  to  these  several  con- 
siderations, where  the  place  of  the  contract,  the  domicil  of  the  parties  to  it,  and 
the  situs  of  the  propertv  have  been  not  all  in  one  jurisdiction  at  the  time  of  the 
contract  (Cobb  v.  Buswell,  37  Vt.  33'7). 

t  Where  in  an  action  of  trespass  against  the  commander  of  a  United  States 
frigate,  for  bringing  to  and  taking  out  of  her  course  a  neutral  vessel,  by  reason 
of  which  the  vessel  was  captured  by  another  nation,  it  appeared  that  the  acts  of 
the  defendant  were  pursuant  to  instructions  from  the  United  States  naval  de- 
partment, and  no  collusion  was  shown  between  the  captors  and  the  defendant,  it 
was  held  that  he  was  not  liable  (Ruan  v.  Perry,  3  Caines,  120). 

Haskell  v.  Sumner,  1  Pick.  459,  was  an  action  of  trespass  de  lonis  asportatis. 
The  defendant  justified  that  he,  as  deputy  sheriff,  levied  on  the  goods  and  effects 
of  the  plaintiff,  in  the  hands  of  A.  B.  and  C,  they  having  come  into  court  and 
disclosed  that  they  had  in  their  hands  the  goods  and  effects  in  question,  and 
being  thereupon  adjudged  the  trustees  of  the  plaintiff,  to  which  the  plaintiff 
replied  that  the  property  was  exempt  from  attachment  and  execution.  It  was 
held  that  the  action  could  not  be  maintained.     The  court  said:   "  A  person  may 


§  461.  PROTECTION    AFFORDED   TO   OFFICER  BY   PROCESS.        429 

is,  that  wliere  the  subject-matter  of  any  suit  is  not  within  the 
jurisdiction  of  the  court  applied  to  for  redress,  everything 
done  is  absolutely  void,  and  the  officer,  as  well  as  the  party, 
becomes  a  trespasser;  but  that  when  the  subject-matter  is 
within  the  jurisdiction  of  the  court,  and  the  want  of  jurisdic- 
tion is  to  the  person  or  place,  then  the  officer  is  excused, 
unless  the  want  of  jurisdiction  appears  in  the  process.^  In 
the  case  of  the  Marshalsea,^  Sir  Edward  Coke,  in  exemplify- 
ing the  distinction  in  this  respect  between  a  proceeding 
coram  non  judice  and  a  proceeding  iiiverso  ordine^  or  errone- 
ous, says :  "  If  the  Court  of  Common  Pleas,  in  a  plea  of  debt, 
doth  award  a  capias  against  a  duke,  earl,  tfec,  which  by  law 
doth  not  lie  against  them,  and  the  same  appeareth  in  the 
writ  itself,  yet  if  the  sheriff  arrest  them  by  force  of  the  capias, 
although  that  the  writ  be  against  law,  notwithstanding,  inas- 
much as  the  court  hath  jurisdiction  of  the  cause,  the  sheriff  is 
excused."  In  that  case,  a  capias  was  an  irregular  process. 
The  proceeding  should  have  been  by  summons  and  distriri' 

be  a  trustee  for  having  in  his  possession  a  specific  article,  or  for  owing  the 
debtor  a  sum  of  money.  No  appeal  was  made  from  the  judgment,  and  aa  exe- 
cution was  issued  directing  the  officer  to  take  the  goods  of  the  principal  in  the 
hands  of  the  trustees.  They  gave  to  the  officer  several  articles  of  which  they 
had  been  held  trustees,  and  the  officer  sold  them  in  the  ordinary  manner.  This 
comes  within  the  common  case  of  an  officer  protected  in  his  acts  of  obedience  to 
a  proper  authority.  The  defendant  had  no  right  to  look  behind  the  judgment 
of  the  Court  of  Common  Pleas.  All  that  we  decide  is,  that  trespass  will  not  lie 
under  these  circumstances." 

Scott  V.  Sherman,  2  Wm.  Blackstone's  R.  977,  was  an  action  of  trespass 
against  custom-house  officers  for  entering  the  plaintiff's  house  and  carrying  away 
some  wines  called  Geneva,  which  had  been  removed  that  morning  from  the 
plaintiff's  ship  to  his  dwelling,  and  which  constituted  part  of  the  ship's  stores. 
The  defendants  introduced  in  evidence  a  record  of  condemnation  of  the  Geneva 
in  the  Court  of  Exchequer  at  a  prior  term.  The  Court  of  King's  Bench  held  that 
the  plaintiff  could  not  recover,  because  the  property  of  the  goods  being  changed, 
and  irrevocably  vested  in  the  crown  by  the  judgment  of  condemnation,  it  fol- 
lowed as  a  necessary  consequence,  that  neither  trespass  nor  trover  could  be 
maintained  for  taking  them  in  an  orderly  manner;  for  the  condemnation  related 
back  to  the  time  of  seizure.  It  was  added  that,  as  the  plaintiff  knew  of  their 
seizure,  and  was  notified  of  the  condemnation  by  two  proclamations,  according 
to  the  course  of  the  court,  it  was  his  duty  to  have  put  in  his  claim,  and,  neglect- 
ing this,  he  was  forever  barred  by  the  condemnation  not  only  with  respect  to 
the  goods  themselves,  but  every  other  collateral  remedy  for  taking  them. 

'  Cloutman  v.  Pike,  7  N.  II.  209;  Barnes  v.  Barber,  1  Gilman,  401;  Parker 
V.  Smith,  lb.  411;  McDonald  v.  Wilkie,  13  111.  22;  Tefft  v.  Ashbaugh,  lb.  602; 
Milburn  v.  Gilman,  11  Mo.  64. 

'  10  Co.  R.  76. 


430  TAKING    PERSONAL    PEOPERTY   BY  OFFICER.  §  462. 

gas.  Yet,  as  the  court  had  jurisdiction  in  actions  of  debt 
against  peers  of  the  realm,  the  sheriff  was  justified  under  the 
capias,  although  peers  were  not  amenable  in  that  mode.* 

§  462.  In  England,  a  distinction  was  made  at  an  early 
day  between  process  issued  by  courts  of  general  and  special 
jurisdiction,  holding  that  to  render  process  issued  by  the 
latter  a  justification  for  him  who  executed  it,  it  must  appear 
that  he  who  issued  the  process  had  jurisdiction  in  the  partic- 
ular case  in  which  the  process  issued.  This  rule  was  applied 
in  Nichols  v.  Walker  and  Carter,^  which  was  an  action  for 
entering  the  plaintiflJ^s  house  and  taking  away  his  goods. 
Carter  was  a  churchwarden,  and  Walker  an  overseer  of  the 
poor  of  the  parish  of  Hatfield,  and  they  attempted  to  justify 
what  had  been  done  under  a  warrant  from  three  justices  of 
the  peace  requiring  them  to  collect  a  poor  rate  which  had 
been  assessed  upon  the  plaintiff.  It  appeared  that  the 
plaintiff  was  not  liable  to  be  taxed.  It  was  claimed  that  as 
the  defendants  acted  under  a  warrant  from  the  justices  they 
were  excused.  But  it  was  held,  that  as  the  rate  was  not 
legally  assessed  upon  the  plaintiff,  the  warrant  did  not  justify 
the  defendants.  The  court  said :  "  It  is  not  like  the  case 
where   an   ofiicer  makes  an  arrest  by  warrant  out  of  the 


*  Cro.  Char.  394. 

*  Where  the  plaintiff  procured  a  second  execution  to  be  issued  by  a  justice 
after  the  first  had  been  indorsed  satisfied,  it  was  held  that,  as  the  process  was 
regular  upon  its  face,  and  issued  by  a  magistrate  who  had  jurisdiction  of  the 
subject-matter,  the  officer  was  justified  in  proceeding  under  it,  it  being  the  duty 
of  an  officer  to  execute  process  regular  upon  its  face  and  within  the  legitimate 
power  of  the  court  issuing  it,  without  first  inquiring  into  the  regularity  of  the 
previous  proceedings  (Lewis  v.  Palmer,  6  Wend.  367). 

It  was  well  observed  by  Chief  Justice  Nelson,  in  Webber  v.  Gay,  24  Wend. 
485,  that  "to  go  beyond  the  rule  that,  if  the  court  has  jurisdiction  of  the  sub- 
ject-matter, and  the  process  is  regular  on  its  face,  the  officer  will  be  protected, 
would  lead  to  a  new  and  troublesome  issue  which  would  tend  greatly  to  weaken 
the  reasonable  protection  to  ministerial  officers.  Their  duties,  at  best,  are  suf- 
ficiently embarrassing  and  responsible.  The  experience  of  the  officer  will  soon 
enable  him  to  determine  whether  the  process  is  in  regular  form  or  not,  or  he  can 
readily  obtain  the  necessary  advice.  But  he  must  be  presumed  wiser  than  the 
magistrate,  if  even  a  knowledge  of  the  proceedings  would  enable  him  to  decide 
correctly,  if  they  happened  to  be  erroneous." 

Case,  and  not  trespass,  is  the  proper  remedy  for  malicious  motive  and  want 
of  probable  cause  in  the  execution  of  process  regular  on  its  face  (Smith  v.  Miles, 
1  Hemp.  34). 


§  463.   PROTECTION   AFFORDED   TO   OFFICER  BY  PROCESS.        431 

king's  court,  which,  if  it  be  error,  the  officer  must  not  con- 
tradict, because  the  court  hath  general  jurisdiction.  But 
here  the  justices  of  the  peace  have  but  a  particular  jurisdic- 
tion to  make  warrants  to  levy  rates  well  assessed."  But  in 
King  V.  Danser,^  Lord  Kenyon  said :  "  A  distinction  indeed 
has  been  made  with  respect  to  the  persons  against  whom  an 
action  may  be  brought  for  taking  the  defendant's  goods  in. 
execution  by  virtue  of  tlie  process  of  an  inferior  court,  where 
the  cause  of  action  does  not  arise  within  its  jurisdiction,  the 
plaintiff  in  the  cause  being  considered  a  trespasser,  but  not 
the  officer  of  the  court."  And  in  Ladbroke  v.  Crickett,^  Bul- 
ler,  J.,  remarked  that  ^'  if  upon  their  face  the  court  had  juris- 
diction, the  officer  was  bound  to  execute  the  process,  and 
could  not  examine  into  the  foundation  of  them,  and  that  will 
protect  him." 

§  463.  In  New  York,  an  officer  who  executed  process  is- 
sued by  a  court  without  jurisdiction  Avas  formerly  held  to 
strict  accountability.  In  Cable  v.  Cooper,®  it  was  affirmed 
that  "  every  tribunal  proceeding  under  special  and  limited 
powers  decides  at  its  peril,  and  hence  it  is  that  process  issu- 
ing from  a  court  not  having  jurisdiction  is  no  protection  to- 
the  court,  to  the  attorney,  or  the  party,  nor  even  to  a  minis- 
terial officer  wbo  innocently  executes  it.  This  is  a  stern 
and  sacred  principle  of  the  common  law  which  requires  to 
be  steadily  guarded  and  maintained."  But  in  Savacool  v. 
Bough  ton,*  the  non-liability  of  the  officer  was  asserted,  on 
the  ground  that  it  was  unjust  to  hold  him  liable  as  a  tres- 
passer for  doing  what -it  was  his  duty  to  do,  without  know- 
ing, or  having  the  means  of  knowing,  whether  his  process 
was  or  was  not  invalid.  In  a  subsequent  case,^  the  court 
said :  "  The  law  imposes  various  duties  upon  ministerial 
officers,  to  the  discharge  of  which  they  are  absolutely  bound 
provided  there  is  no  jurisdiction.     And  tbough  there  be  a 


'  6  Term  R.  243.  "  2  Term  R.  653.     See  ante,  §  335. 

M5  Johns.  152.  "  5  Wend.  170. 

'  Earl  V.  Camp,  16  Wend.  562. 


432      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  463. 

total  want  of  jurisdiction,  if  it  be  not  apparent  on  the  face  of 
tlie  process,  the  law  will  not  put  them  to  inquire  and  judge 
of  the  case.  In  general,  they  ought  not  to  look  beyond  the 
process,  and  in  no  case  need  they  do  so.  Their  duty  is 
usually  to  arrest  the  person  or  take  the  goods  of  another. 
Wherever  there  is  jurisdiction  of  the  process,  the  law  means 
to  make  the  officer  safe  in  yielding  implicit  obedience."^ 
Subsequently  it  was  held  that  process  regular  upon  its  face 
would  protect  the  officer,  though  issued  without  authority,^ 
and  though  he  had  knowledge  of  facts  rendering  it  void  for 
want  of  jurisdiction.^  ^  In  Porter  v.  Purdy,*  it  was  said  that 
the  same  consideration  should  excuse  a  commissioner  of  high- 
ways, or  trustee  of  a  village,  when  they  are  required  to  act 
upon  evidence  which  they  cannot  be  presumed  to  know  is 
forged,  and  are  without  means  of  determining  whether  it  is 
or  is  not  genuine.  "  If,"  said  MuUin,  J.,  in  delivering  the 
opinion  of  the  court,  "  in  such  case  there  is  a  want  of  juris- 
diction, the  proceeding  should  be  reversed  or  annulled.  But 
the  officer  should  not  be  held  to  be  a  trespasser  unless  he 
knows,  or  has  reason  to  know,  that  he  is  acting  without  juris- 
diction." f 


'  And  see  Lyon  v.  Yates,  53  Barb.  237 ;  Kerr  v.  ]\Iouat,  28  N.  Y.  659 ;  Wilton 
Manf.  Co.  v.  Butler,  34  Maine,  431. 

^  Noble  V.  Holmes,  5  Hill,  194;  Cornell  v.  Barnes,  7  lb.  35. 

=  The  People  v.  Warren,  5  Hill,  440.  "  29  N.  Y.  106. 

*  In  the  People  v.  Warren,  svpra,  the  defendant  was  convicted  of  assault  and 
battery  upon  an  officer  in  resisting'  an  arrest  under  a  warrant  issued  by  inspectors 
of  election,  and  it  was  held  that  the  knowledge  of  the  officer  that  the  inspectors 
had  not  jurisdiction  did  not  afl'ect  his  right  to  make  the  arrest  (s.  p.  Webber  v. 
Gay,  24  Wend.  485).  The  rule  which  justifies  the  officer  when  acting  under 
process  regular  on  its  face  is  one  of  protection,  not  of  assault — a  shield  but  not  a 
sword.  The  officer,  when  sued,  may  defend  under  sucli  process,  but  he  cannot 
build  up  a  title  upon  it  Avhich  will  enable  him  to  maintain  an  action  against 
third  persons.  See  Sturbridge  v.  Winslow,  21  Pick.  83.  Two  officers  proceeded 
under  attachments  in  favor  of  different  creditors,  which,  though  void  as  to  the 
parties  in  whose  favor  they  issued,  were  regular  upon  their  face,  and  without 
any  apparent  defect  of  jurisdiction  on  the  part  of  the  magistrate  who  issued 
them.  It  was  held  that  the  officer  who  levied  first,  and  out  of  whose  custody 
the  other  officer  took  the  property,  could  not  maintain  trespass  for  the  taking 
(Horton  v.  Hendershot,  1  Hill,  118).  An  action  of  trespass  cannot  be  main- 
tained for  the  violation  of  an  elector's  privilege,  under  lawful  and  regular  pro- 
cess, though  done  maliciously  (Swift  agst.  Chamberlain,  3  Conn.  537). 

t  In  Fox  V.  Wood,  1  Rawle,  143,  the  collector  of  a  militia  fine  was  protected, 
though  the  delinquent  was  exempt  from  military  duty.     The  contrary  seems  to 


§  4G4.   PROTECTION    AFFORDED  TO   OFFICER   BY   PROCESS.         433 

§  464.  An  officer  is  bound  to  obey,  without  looking  into 
the  grounds  of  action,  any  precept  put  into  his  hands  to  serve, 
which  appears  on  its  face  to  be  regular  and  to  have  been  is- 
sued by  competent  authority  ;  and  his  private  knowledge  of 
facts  showing  that  there  is  no  cause  of  action,  will  not  change 
his  duty  or  liability.^  *     Watson  v.  Watson  ^  was  an  action 


have  been  held  by  the  Supreme  Court  of  the  United  States  in  Wise  v.  Withers,  3 
Cranch,  331.  The  plaintiff  in  the  latter  was  a  magistrate  in  the  District  of 
Columbia,  and  as  such  not  subject  to  military  duty.  He  was  fined  for  neglect  of 
such  duty,  and  a  warrant  for  the  collection  of  the  fine  issued  to  the  defendant, 
who  seized  his  property  thereon.  For  this  act  he  was  prosecuted.  The  court 
said  that  it  was  a  settled  principle  that  the  decision  of  such  a  tribunal  in  a  case 
clearly  without  its  jurisdiction  would  not  protect  the  officer  acting  under  it,  and 
that  the  court  and  officers  would  all  be  trespassers.  In  Savacool  v.  Boughton,  5 
Wend.  170,  Marcy,  J.,  in  commenting  upon  the  case  of  Wise  v.  Withers,  said: 
"  The  only  point  much  considered  in  the  case  was  that  which  involved  the  ques- 
tion as  to  the  plaintiff's  exemption  from  military  duty,  but  that  which  related  to 
the  defendant's  protection  under  his  warrant  was  only  glanced  at  in  the  argu- 
ment of  the  counsel  and  in  the  decision  by  the  court.  The  distinction  contended 
for  in  this  case  was  scarcely  raised  there,  and  the  attention  of  the  court  does  not 
appear  to  have  been  drawn  to  a  single  case  in  which  it  has  ever  been  noticed. 
The  Chief  Justice,  in  the  opinion  of  the  court,  merely  observes  that  it  is  a  princi- 
ple that  a  decision  of  such  a  tribunal  (a  tribunal  of  limited  jurisdiction),  clearly 
without  its  jurisdiction,  cannot  protect  the  officer  who  executes  it.  I  would 
with  deference  ask  whether  there  is  not  an  error  in  the  application  of  the  princi- 
ple which  the  Chief  Justice  lays  down  to  the  case  then  before  the  court  ?  He 
must  mean  by  a  decision  being  clearly  without  the  jurisdiction  of  the  court,  a 
sentence  or  judgment  on  a  matter  not  within  its  cognizance.  Was  the  subject- 
matter  of  that  cause  beyond  the  cognizance  of  a  court-martial  ?  It  appears  to  me 
that  it  was  not.  The  power  and  duty  of  the  court  was  to  punish  and  fine  delin- 
quents, consequently  it  had  jurisdiction  over  the  subject-matter,  but  not  over  the 
person.  There  was  nothing  in  the  process  which  the  ministerial  officer  executed 
to  apprize  him  that  the  court  had  not  jurisdiction  of  the  person.  It  seems  to 
me  that  it  was  not  a  case  to  which  the  principle  laid  down  by  the  court  was  ap- 
plicable, but  it  would  have  been  such  a  case  if  there  had  been  a  want  of  juris- 
diction over  the  subject-matter.  I  can  scarcely  consider,  therefore,  the  deter- 
mination of  the  Supreme  Court  of  the  United  States  in  the  case  of  Wise  v. 
Withers  a  deliberate  decision  on  the  question  now  before  us." 

The  statute  of  Tennessee  of  Nov.  20, 1861,  establishing  an  ordinance  bureau,  &c., 
empowering  the  governor  of  the  State  to  commission  persons  in  each  county  to  col- 
lect the  arms  of  the  citizens,  and  fining  those  who  refused  to  give  them  up,  was  held 
to  be  a  violation  of  the  bill  of  rights,  which  permits  citizens  to  keep  and  bear  arms 
for  the  common  defense,  and  one  who,  being  duly  commissioned  under  the 
statute,  took  a  person's  gun  away  from  him,  was  held  personally  liable  as  a  tres- 
passer (Smith  V.  Ishenhour,  3  Cold.  Tenn.  214). 

'  Belk  V.  Broadbcnt,  3  Term  R.  183,  185;  Brainard  v.  Head,  15  La.  An.  489; 
Grumon  v.  Raymond,  1  Conn.  40,  Daggett,  J.,  dissenting. 

^  9  Conn.  140;  and  see  Cornell  v.  Barnes,  7  Hill,  35,  and  Earl  v.  Camp,  10 
Wend.  502,  contra. 

*  Badkin  v.  Powell  and  others,  Cowp.  470,  was  an  action  of  trespass  brought 
against  two  persons  for  taking  the  plaintifTs  horse  and  cart,  and  also  against  the 
pound  keeper  for  receiving  them.  The  original  taking  was  admitted  to  be 
wrongful;  and  the  court  held  that,  as  the  pound  keeper  was  bound  to  take  and 
keep  whatever  was  brought  to  him,  at  the  peril  of  the  person  who  brings  it,  he 
Vol.  I.— 28 


434  TAKING    PERSONAL  PROPERTY  BY  OFFICER.  §  465. 

of  trespass  against  a  constable  for  taking  and  carrying  away 
a  horse,  under  a  writ  of  replevin  which  commanded  him  to 
cause  the  beasts  of  the  plaintiff,  impounded  or  distrained, 
to  be  replevied.  It  was  proved  that  the  horse  in  question 
was  not  impounded  or  distrained,  and  that  the  defendant 
knew  it.  From  this,  the  plaintiff  argued  that  the  defendant 
ought  not  to  have  served  the  replevin,  and  that  in  so  doing 
he  became  a  trespasser.  It  was,  however,  held  that,  as  the 
defendant  was  a  legal  officer,^  it  was  his  duty,  regardless  of 
any  knowledge  or  supposed  knowledge  of  his  own  that  there 
existed  no  cause  of  action,  to  serve  the  writ  committed  tc^ 
him  ;  that  the  facts  on  the  face  of  the  writ  constituted  his 
justification,  because  he  was  obliged  to  obey  its  mandate,  and 
it  was  not  any  part  of  his  duty  to  determine  whether  the 
allegations  contained  in  the  replevin  were  true ;  that  being 
an  executive  officer,  it  was  his  duty  to  execute,  and  not  to 
decide  on  the  truth  or  sufficiency  of  the  processes  committed 
to  him  for  service ;  and,  therefore,  if  they  were  issued  by 
competent  authoi'ity,  and  with  legal  regularity,  and  so  ap- 
peared on  their  face,  he  was  justified  for  eveiy  act  of  his 
within  the  scope  of  their  command. 

§  465.  Where,  however,  the  process  shows  on  its  face  that 
the  court  issuinoj  it  had  not  jurisdiction,  the  officer  who  at- 
tempts to  execute  it  will  be  a  trespasser;^  and  this  liability 
applies  to  a  case  where  the  want  of  jurisdiction  arises  from  a 
fact  of  public  notoriety  which  is  presumed  to  be  equally 
within  the  knowledge  of  the  officer  as  well  as  others,  and  of 
which  he  is,  therefore,  bound  to  take  notice.^  Adkins  v. 
Brewer  ^  was  an  action  of  trespass  for  seizing  and  selling  the 
goods  of  the  plaintiff  under  a  void  attachment,  issued  by  a 
justice  of  the  peace,  without  proof  of  absence  or  concealment, 


was  not  a  trespasser.  Lord  Mansfield  remarked  that  "It  would  be  terrible  were 
he  liable  to  an  action  for  refusing  to  take  cattle  in,  and  also  liable  in  another  ac- 
tion for  not  letting  them  go." 

'  The  State  v.  Mann,  5  Iredell,  45 ;  Whitfield  v.  Johnston,  1  lb.  473 ;  Sprague 
V.  Birchard,  1  Wis.  457. 

^  Parker  v.  Walrod,  13  Wend.  296;  aff'd  16  lb.  514. 

■  3  Cowen,  206;  and  see  Van  Steenburgh  v.  Kortz,  10  Johns.  167. 


§  405.   rEOTECTION    AFFORDED  TO   OFFICER  BY   PROCESS.        435 

and  without  bonds  being  taken  pursuant  to  the  statute.  It 
appeared  that  the  ])roperty  in  question  was  sold  by  a 
constable,  under  eight  other  executions  older  than  the  void 
one ;  that  the  constable  levied  and  sold  under  all  the  exe- 
cutions, at  the  same  time,  indiscriminately ;  and  that  the 
void  execution,  as  well  as  the  others,  was  satisfied  by  the  sale 
andthemoney  paid  to  the  plaintiff.  It  was  held  that  all  con- 
cerned were  trespassers.  But  where  goods  have  been  seized 
under  a  void  process,  the  officer  may  afterward  execute  a 
legal  warrant,  the  subsequent  valid  seizure  not  being  viti- 
ated by  the  previous  trespass.-*  ''^  Gile  v.  Devens  ^  was  an  ac- 
tion of  trespass  against  a  United  States  marshal  for  seizing 


'  Percival  v.  Stamp,  9  Exch.  167;  Hooper  v.  Lane,  6  H.  L.  C.  443. 

="  11  Cush.  59. 

*  Where  goods  are  wrongfully  seized  under  a  writ,  there  is  a  broad  and  well 
recognized  distinction  between  the  cases  of  process  which  is  void  or  set  aside  as 
illegally  sued  out,  and  a  writ  liable  to  be  abated  and  which  is  afterward  actually 
abated.  In  the  former,  the  process  is  considered  as  never  having  issued,  so  far  as 
concerns  the  party  who  sues  it  out.  If  goods  be  taken  on  an  execution  which  was 
illegally  issued  and  afterward  set  aside  on  that  account,  and  an  action  of  trespass  be 
brought  therefor,  the  defendant  cannot  justify  under  the  execution  because  it 
has  not  and  never  had  any  legal  existence.  But  an  original  writ  that  is  abatable 
may  or  may  not  be  abated,  according  to  the  defendant's  plea.  If  it  be  afterward 
abated,  it  is  by  judgment  of  the  court ;  and  the  writ,  so  far  from  being  a  mere  nul- 
lity, becomes  a  record,  and  is  the  foundation  of  the  judgment  which  the  court 
renders.  In  the  one  case,  an  action  of  trespass  may  be  maintained ;  while,  in 
the  other,  an  action  upon  the  case  is  the  proper  and  exclusive  remedy  (See  Hay- 
den  V.  Shed,  11  Mass.  500). 

A  defective  affidavit,  which  may  be  amended,  will  be  a  good  defense  in  an 
action  of  trespass  against  those  acting  under  it  in  attaching  the  jiroperty  of  a 
non-resident  debtor  (see  State  v.  Foster,  10  Iowa,  435). 

No  defect  should  render  process  entirely  void,  where  the  matter  intended  can 
be  understood,  however  defective  the  mode  of  expression.  Process  may  be 
regarded  as  voidable  by  reason  of  defects,  without  serious  prejudice  to  the  rights 
of  parties,  because  such  defects  are,  in  their  nature,  amendable  under  the  orders 
of  the  court  upon  such  reasonable  terms  as  may  be  just  to  both  parties ;  and  such 
defects  may  be  waived  or  released  by  agreement  of  parties,  or  by  such  acts  of 
the  party  entitled  to  take  advantage  of  them,  as  show  that  they  are  not  relied 
upon,  as  suffering  a  default,  ])leading  over  to  the  merits,  and  the  like.  But  it 
is  otherwise  with  such  defects  as  render  process  void.  Parties  Avho  have  acted 
ignorantly,  imder  such  invalid  process,  may  be  subjected  to  be  treated  as  wrong- 
doers and  trespassers,  where  they  have  intended  to  act  with  entire  propriety. 
And  courts  will  hardly  hesitate  to  sustain  such  process,  where,  without  violence 
to  the  ordinary  usages  of  language,  it  may  be  so  understood  as  to  render  it  legal 
and  operative  (Kelly  v.  Oilman,  9  Fost.  885). 

Where  a  warrant,  to  collect  a  fine,  issued  by  a  militia  officer,  recited  that  the 
same  was  imjjosed  by  C.  S.  Captain,  but  it  was  signed  "'  C.  S.  Jun.  Captain,"  it 
was  held  that  the  process  was  legal,  junior  being,  in  law,  no  part  of  a  person's 
name  (Brainard  v.  Stilphin,  6  Vt.  9). 


43G  TAKING    PERSONAL    PROPERTY   BY   OFFICER.  §  466. 

the  plaiutifTs  goods.  It  appeared  that  the  goods  were,  at 
first,  attached  iu  the  plaintiff's  store,  as  the  property  of  one 
Cobb,  and  that  a  few  hours  afterward,  it  having  been  dis- 
covered that  the  goods  did  not  belong  to  Cobb,  but  to  the 
plaintiff,  the  writ  was  altered  by  inserting  therein  the  name 
of  the  plaintiff  as  joint  defendant  with  Cobb ;  and  the  goods 
were  thereupon  a  second  time  attached  as  the  property  of 
Gile  the  present  plaintiff.  The  plaintiff  contended,  that  dur- 
ing the  time  the  defendant  held  the  goods  on  a  writ  against 
Cobb  alone,  he  was  clearly  a  trespasser ;  and  that,  after  the 
alteration  of  the  writ,  he  was  still  a  trespasser  for  two  rea- 
sons:— 1st.  That  the  first  attachment  being  tortious,  and  the 
goods  having  been  held  under  it  up  to  the  time  of  making 
the  second  attachment,  such  new  attachment  was  not  valid ; 
2d.  That  the  alteration  of  the  writ,  after  the  ofiicer  had  made 
an  attachment  upon  it,  rendered  the  second  attachment  a  nul- 
lity. At  the  trial  in  the  common  pleas,  the  judge  ruled  that, 
as  the  original  attachment  was  tortious,  the  officer  could  not, 
while  he  held  such  tortious  possession  and  attachment,  make 
a  new  attachment  under  which  he  could  justify.  But  the 
Supreme  Court  held,  that  the  plaintiff  was  only  entitled  to 
judgment  for  the  amount  of  the  injury  which  he  had  sus- 
tained in  consequence  of  the  first  attachment ;  that  the  al- 
teration of  the  writ  furnished  no  objection  to  the  defendant's 
proceedings  under  it ;  and  that,  if  the  writ  had  been  bad, 
the  plaintiff  ought  to  have  objected  to  it  by  plea  in  abate- 
ment or  motion  to  dismiss,  and  the  defendant  could  not  be 
treated  as  a  trespasser  for  serving  it. 

§  466.  The  extent  of  the  officer's  liability  in  executing  a 
writ  in  replevin  does  not  seem  to  be  settled;  some  of  the 
cases  have  held  that  where  the  command  of  the  writ  is  to 
replevy  and  deliver  certain  specified  chattels,  the  process 
will  be  sufficient  protection  to  the  officer,  though  he  take  tlie 
chattels  from  the  possession  and  they  are  the  property  of  one 
who  is  a  stranger  to  the  writ,  unless  the  person  in  possession 
claims  the  goods  when  the  officer  comes  to  demand  them, 


§  4C6.   PROTECTION    AFFORDED   TO   OFFICER  BY   PROCESS.         437  * 

and  tlie  officer  takes  them,  notwithstanding  such  claim  of 
property.^  *  Foster  v.  Pettibone,^  was  an  action  of  trespass 
commenced  before  the  enactment  of  the  New  York  Code, 
brought  for  the  taking  by  the  defendant  of  a  quantity  of 
flour,  the  property  of  the  plaintiff.  The  defendant,  at  the 
time  of  the  taking,  was  sheriff  of  the  county  of  Cayuga,  and 
took  the  flour  from  the  possession  of  one  Baker,  under  a  writ 
of  replevin  issued  in  a  suit  in  favor  of  one  Brown  against 
Baker,  directed  to  him  and  requiring  him  to  take  the  prop- 
erty. The  question  in  the  case  was,  whether  the  present  de- 
fendant was  liable  as  a  trespasser  to  the  present  plaintiff,  the 
owner  of  the  flour,  for  taking  it  as  a  sheriff",  in  obedience  to 
the  writ.  Or,  in  other  words,  w^hether  trespass  could  be 
maintained  by  the  owner  of  goods  against  a  sheriff  for  taking 
them  under  a  writ  of  repleviti,  against  another  person  having 
the  goods  in  possession.  The  referee  before  whom  the  action 
was  originally  tried,  nonsuited  the  plaintiff',  on  the  ground 
that  the  defendant  was  justified  by  the  writ;  and  the  ruling 
of  the  referee  w^as  afterward  affirmed  by  the  Supreme  Court.f 

'  Hallettv.  Byrt,  Carthew,  380;  Willard  v.  Kimball,  10  Alien,  211;  Ship- 
man  V.  Clark,  4  Denio,  446;  per  Bronson,  Ch.  J. 

^  20  Barb.  350,  Johnson,  J.,  dissenting ;  Stimpson  v.  Reynolds,  14  Barb.  500, 
contra. 

*  In  Willard  v.  Kimball,  supra,  Metcalf,  .1.,  in  delivering  the  opinion,  stated 
the  case  thus:  "The  papers  show  the  facts  alleged  in  the  defendant's  answer  to 
be  true ;  that  a  writ  of  replevin,  in  due  form  of  law,  was  put  into  the  deputy's 
hands,  sued  out  by  the  persons  named  in  the  answer,  against  William  A.  Knowles, 
in  whose  possession  the  coal  then  was,  and  that  the  deputy  served  that  writ,  in 
all  particulars,  in  the  manner  prescribed  by  law,  taking  the  coal  from  the  posses- 
sion of  Knowles.  This  shows  a  justification  of  the  deputy  in  serving  the  writ. 
Neither  he  personally,  nor  the  defendant,  whose  deputy  he  is,  can  be  held  liable 
in  damages  to  this  plaintiff  for  that  service,  even  though  it  could  be  proved  that 
the  plaintifl's  in  that  action  of  replevin  had  no  rightful  claim  to  the  coal,  and 
that  this  plaintiti"  was  the  sole  owner  of  it.  The  deputy  did  what  his  precept 
commanded  him  to  do,  and  nothing  more.  What  the  result  of  that  action  of 
replevin  was  we  are  not  informed,  and  need  not  know;  whether  it  is  still  un- 
decided, or  whether  judgment  has  been  rendered  for  the  defendant  in  replevin. 
There  can  be  no  pretence,  we  think,  that  the  failure  of  a  plaintift"  in  replevin  to 
maintain  his  action,  renders  the  officer  who  served  the  writ  liable  in  damages  to 
the  defendant,  or  to  any  other  person  who  may  have  a  claim  to  the  replevied 
property." 

Wliether  an  officer  would  be  liable  to  the  true  owner  of  goods,  if,  on  a  writ 
of  replevin  commanding  him  to  take  them  from  the  possession  of  the  defendant 
in  replevin,  he  should  take  them  from  such  owner,  or  from  some  other  person, 
{jucere  (Willard  v.  Kimball,  supra). 

t  In  Foster  v.  Pettibone,  supm,  Strong,  J.,  who  delivered  the  opinion,  re- 


438  TAKING    PEESONAL   PROPERTY    BY   OFFICER.  §  4G7. 

In  King  r.  Orser/  the  New  York  Superior  Court  decided 
that,  as  the  officer  under  the  Code  can  only  take  the  prop- 
erty described  in  the  affidavit  of  the  plaintiff  when  it  is 
found  in  the  possession  of  the  defendant  or  his  agent,  if  the 
property  is  in  the  possession  of  any  other  person  than  the 
defendant,  the  officer  in  taking  it  acts  at  his  peril,  and  can 
only  free  himself  from  liability  as  a  trespasser  by  showing 
that  such  person  was  in  reality  no  more  than  an  agent  of  the 
defendant ;  and  that  if  the  officer  failed  in  this  proof,  he  was 
just  as  liable  for  the  value  of  the  proj^erty  to  the  person 
from  whose  possession  it  was  wrongfully  taken  as  he  was  to 
the  true  owner  of  goods  which  were  levied  on  and  sold  under 
an  execution  against  another.  And  in  Ohio,  it  has  been  held 
that  where  property  is  taken  by  an  officer  by  virtue  of  a 
writ  of  replevin  from  the  possession  of  a  third  person,  who 
is  the  hona  fide  owner  thereof,  the  officer  will  be  liable,  al- 
though the  property  taken  be  the  same  that  is  described  in 
the  writ.^ 

§  467.  Where  an  execution,  regular  upon  its  face,  is 
issued  upon  a  judgmen:  rendered  by  a  court  having  juris- 
diction of  the  subject-matter,  the  officer  is  under  no  obliga- 
tion to  inquire  into  the  regularity  of  the  service  of  the  orig- 
inal writ.^*     He  may  justify  by  producing  the  execution 


marked  that  "  it  was  a  consideration  entitled  to  no  small  weight  against  the 
right  of  action,  that  as  often  as  property  had  l)een  seized  under  a  writ  of  re- 
plevin issued  therefor,  which  belonged  to  or  was  claimed  by  some  other  person 
than  the  parties,  no  case  could  be  found  in  which  a  recovery  against  the  officer 
who  served  the  writ  as  a  wrong-doer  had  been  permitted ;  that  the  fact  was  a 
striking  testimony  to  the  prevalence  of  an  opinion  among  the  profession  ever 
since  the  action  of  replevin  had  existed,  that  no  liability  was  incurred  by  the 
officer  by  acts  done  by  him  in  obedience  to  the  process." 

'  4  Duer,  431.  '  State  v.  Jennings,  14  Ohio,  N.  S.  73. 

=  Smith  v.  Bowker,  1  Mass.  76 ;  Averett  v.  Thompson,  15  Ala.  678 ;  Wilton 
Manf.  Co.  v.  Butler,  34  Maine,  431. 

*  Smith  V.  Bowker,  supra,  was  an  action  of  trespass  against  a  deputy  sheriff, 
for  taking  and  selling  cows  of  the  plaintifl',  by  virtue  of  an  execution  on  a  judg- 
ment against  the  plaintiff  in  an  attachment  suit.  It  was  contended  by  the  pres- 
ent plaintiff,  that  the  defendant  was  a  trespasser,  for  the  reason  that  the  writ  of 
attachment  was  against  Smith,  of  Orange,  in  the  county  of  Hampshire,  whereas 
it  should  have  been  against  Smith,  of  Athol,  in  the  county  of  Worcester.  But 
it  was  held  that  the  defendant  was  entitled  to  judgment.  Strong,  J.,  said: 
''The  question  is,  whether  the  defendant  was  bound  to  inquire  as  to  the  service 


§  467.   PROTECTION    AFFORDED  TO   OFFICER  BY   PROCESS.         439 

under  which  he  acted,  without  proving  the  judgment.  But 
when  he  sees  fit  to  go  beyond  the  process,  or  when,  for  any 
other  reason,  it  becomes  necessary  for  him  to  prove  a  judg- 
ment, he  cannot  do  so  without  pleading  it.^  Any  other  per- 
son claimins:  the  benefit  of  the  official  acts  of  the  officer,  must 
prove  the  judgment.  And  the  officer  must  do  the  same  wlien 
he  is  asserting  a  quasi  title  by  virtue  of  the  levy  as  against 
any  other  than  the  judgment  debtor.^  *     If  the  execution  be 

of  the  original  writ.  He  certainly  was  not.  The  officer  is  not  holden  to  look 
beyond  his  execution.  It  might,  perhaps,  be  a  question  whether  the  judgment 
rendered,  as  that  was,  on  default,  might  not  be  reversed;  but  with  that  question 
the  officer  has  nothing  to  do.  I  have  never  known  a  question  like  this,  except 
in  cases  of  writs  of  error.  I  think  that  the  defendant  in  the  original  action 
could  take  advantage  of  the  mistake  in  the  writ  only  by  pleading  in  abatement. 
Be  that  as  it  may,  I  am  clear  that  tlie  present  defendant  has  legally  executed  his 
writ,  and  that  he  is  therefore,  upon  the  state  of  facts  submitted,  entitled  to 
judgment." 

The  levy  of  an  execution  upon  the  property  of  a  corporation  where,  in  the 
judgment  and  execution,  the  corporation  is  styled  differently  from  the  name 
given  it  by  its  charter,  will  not  constitute  a  trespass  (Wilton  Manf.  Co.  v.  Butler, 
34  Maine,  431). 

'  Dennis  v.  Snell,  54  Barb.  411 ;  Shaw  v.  Davis,  55  lb.  389. 

'  Mower  v.  Stickney,  5  Min.  397. 

*  The  decision  in  High  v.  Wilson,  3  Johns.  46,  and  in  the  several  cases  in 
the  English  courts  whichpreceded  it,  went  no  further  than  to  require  the  pro- 
duction of  the  judgment  in  a  suit  with  a  stranger  who  showed  in  himself  a  title 
to  the  property  which  was  good  as  against  the  defendant  in  the  execution.  In 
Lake  v.  Billers,  1  Ld.  Raymond,  733;  Martyn  v.  Podger,  5  Burr.  R.  2631;  Ack- 
worth  V.  Kempe,  1  Doug.  R.  41,  and  in  the  case  of  High  v.  Wilson,  before  re- 
ferred to,  the  plaintiffs  showed  title  in  themselves  dei'ived  from  the  defendant 
in  the  execution  before  the  lien  of  the  execution  attached  thereon.  The  execu- 
tion of  itself,  therefore,  was  no  defense  to  the  officer,  who  could  only  make  it 
available  against  a  stranger  to  it  by  connecting  it  with  a  judgment,  and  then 
showing  that  the  transfer  of  the  property  to  the  person  thus  claiming  it  was 
fraudulent  and  void  as  against  the  creditor  who  had  recovered  such  judgment. 
In  this  view  of  the  subject,  the  cases  referred  to  may  be  sustained  upon  prin- 
ciple, as  tlie  production  of  the  judgment  record  was  necessary  to  establish  the 
fact  tliat  the  execution  issued  upon  a  judgment  rendered  for  a  cause  of  action 
which  existed,  or  for  a  debt  contracted  before  the  issuing  of  such  execution, 
otherwise  there  would  have  been  no  creditor  as  against  whom  the  transfer  of  the 
property  could  have  been  fraudulent.  But  tliere  are  many  cases  in  which  it  has 
been  held,  that  where  the  officer  has  levied  upon  property  in  the  possession  of 
the  defendant  in  the  execution,  and  it  has  been  subsequently  taken  from  him  by 
a  stranger,  he  may  sustain  an  action  against  such  stranger  upon  his  title  and  pos- 
session under  the  execution  alone,  without  producing  the  judgment  to  show  that 
the  execution  had  regularly  issued  (the  Chancellor,  delivering  opinion  in  Parker 
V.  Walrod,  16  Wend.  514). 

In  trespass  against  an  execution  creditor  and  the  bailiff  of  a  county  court  for 
seizing  goods  on  Ijchalf  of  a  judgment  creditor,  the  plaintiff  put  in  the  warrant 
of  execution,  with  the  indorsement  thereon  by  the  officer  that  he  had  taken  the 
goods  under  it.  It  was  held  that  the  bailiff,  as  well  as  the  execution  creditor, 
was  bound  to  prove  the  judgment,  and  that  the  warrant  reciting  the  judgment 


440  TAKING    PERSONAL    PROPERTY   BY   OFFICER.  §  468. 

voidable  only,  and  not  void,  it  will  protect  both  the  officer 
and  the  party  at  whose  instance  it  is  issued.^  And  although 
it  is  satisfied  in  fact,  yet  if  it  is  unsatisfied  on  its  face,  and 
the  officer  has  no  notice  of  the  satisfaction,  he  will  not  be 
liable  as  a  trespasser  for  acting  under  it.^  Where  a  deputy 
sheriff  acting  under  a  void  commission,  levied  on  goods,  and 
the  goods  were  sold  by  him,  it  was  held,  in  an  action  against 
the  sheriff,  that  he  was  protected  by  the  execution.^ 

§  4G8.  Where  a  judgment  debtor  exhibits  to  the  officer, 
who  has  an  execution  against  him,  a  receipt,  and  offers  to 
prove  by  a  witness  the  settlement  of  the  debt,  the  officer  is 
not  bound  to  investigate  the  genuineness  or  sufficiency  of  the 
receipt.*  Within  this  principle,  where  an  officer  had  an  exe- 
cution to  collect,  which  issued  on  a  judgment  rendered  for  the 
amount  of  a  note  duly  negotiated,  it  was  held  that  he  was 
not  a  trespasser  for  proceeding  to  collect  the  same,  after  the 
debtor  had  procured  and  shown  him  a  discharge  from  the 
nominal  plaintiff,  the  assignor,  and  forbidden  his  thus  pro- 
ceeding.^ *     So,  likewise,  an  officer  will  be  protected  who  pro- 


(tbough  put  in  by  the  plaintiff)  was  no  evidence  of  such  judgment  (White  v. 
Morris,  2  J.  Scott,  1015). 

'  Nichols  V.  Thomas,  4  Mass.  232;  Sandford  v.  Nichols,  13  lb.  286;  Cogbura 
V.  Spence,  15  Ala.  549;  Wilmarth  v.  Burt,  7  Mete.  257;  Batchelder  v.  Currier^ 
45  N.  Hamp.  460. 

^  Thrower  v.  Vaughan,  1  Richardson,  18. 

'  Crockett  v.  Lattinier,  1  Humph.  272. 

*  Twitchell  v.  Shaw,  10  Cush.  46 ;  Wilmarth  v.  Burt,  7  Mete.  257. 
'  Lampson  v.  Fletcher,  1  Vt.  168 ;  ante,  §  336. 

*  In  this  case,  it  was  said:  "The  court  are  equally  disposed  to  protect  the 
lona  Jide  assignee  of  a  note  in  his  right  of  action,  if  any  such  right  exists  upon 
the  note,  and  the  right  of  the  signer  of  the  note  to  make  any  defense  that  exists 
before  he  has  notice  of  the  assignment.  But  we  think  that  each  must  attend  to 
his  rights  in  proper  season,  and  not  by  letting  the  proper  season  go  by  neglected, 
so  pursue  his  rights  afterwards  as  unnecessarily  to  embarrass  the  rights  of  the 
other  party,  and  more  especially,  the  rights  of  a  public  officer.  In  this  case, 
when  the  note  was  sued,  the  defendant  Lampson  ought  to  have  made  his  defense, 
whether  it  were  an  offset  or  discharge  from  Jennison,  before  judgment  against 
him.  The  suit  was  then  under  the  care  of  Austin,  the  assignee,  and  he  would 
have  had  opportunity  to  meet  this  defense,  and  show  it  unjust,  if  he  could. 
But  Lampson,  instead  of  preferring  his  defense  where  Austin  could  know  and 
meet  it,  takes  his  judgment  in  his  action  against  Jennison,  of  which  action 
Austin  was  probably  ignorant ;  if  not,  he  had  no  right  to  appear  in  it ;  and  while 
Austin's  execution  is  in  the  hands  of  the  sheiiff,  he  procures  a  discharge  from 
Jennison,  by  offsetting  judgments,  and  shows  this  discharge  to  the  sheriff,  and 


§  4G9.   PROTECTION   AFFORDED  TO   OFFICER  BY   PROCESS.         441 

ceeds  in  good  faith  to  serve  an  execution  after  being  told  by 
the  defendant  that  an  appeal  has  been  taken/ 

§  469.  Where  an  officer  acts  officiously  and  as  a  volunteer, 
it  is  incumbent  upon  him  to  show  that  the  process  was  legal 
and  sufficient.^  *     If  he  is  engaged  in  a  conspiracy,  the  writ, 


forbids  his  proceeding  with  the  execution,  while  Austin,  whose  ownership  was 
known  to  Lampson  long  before  his  suit  upon  the  note,  asserts  his  right  to  control 
the  execution,  and  directs  the  sheriff  to  proceed.  He  follows  the  direction  of 
Austin  and  levies  upon  a  wagon  of  Lampson,  for  which  he  brought  his  action  of 
trespass.  Under  these  circumstances,  the  sheriff  did  right  in  obeying  Austin. 
Lampson  had  neglected  his  defense  till  the  note  had  passed  into  a  judgment, 
which  warranted  the  execution,  which  was  'prima  facie  a  good  authority  to  take 
the  wagon.  Lampson  had  no  right  to  stop  the  course  of  tliis  execution  by  a  dis- 
charge merely  from  Jennison,  who,  as  Lampson  knew,  had  conveyed  the  note  to 
Austin.  If  he  would  stop  the  progress  of  the  execution  in  this  stage  of  it,  he 
must  resort  to  his  audita  querela^  in  which  the  merits  of  his  claim  may  be  tried, 
and  his  bonds  to  prosecute  will  keep  good  and  safe  the  rights  of  Austin  while 
the  matter  is  in  litigation.  In  the  course  taken  by  Lampson,  Fletclier  must 
either  obey  or  disobey  a  regular  and  legal  execution,  at  the  peril  of  deciding  cor- 
rectly, a  dispute  between  Austin  and  Lampson  about  the  defense  which  Lampson 
had,  but  did  not  make,  to  the  note  assigned  to  Austin.  If  he  decided  this  point 
wrong,  and  obeyed  the  process,  Lampson  treats  him  as  a  trespasser.  If  he  de- 
cided the  same  point  wrong  and  disobeyed  the  process,  Austin  has  his  action  in 
the  name  of  Jennison  for  such  neglect.  It  will  not  do  to  sanction  a  course  which 
necessarily  places  a  sheriff  in  such  a  dilemma.  When  a  discharge  is  shown  to  a 
sheriff  from  a  person  who  is  the  owner  of  the  debt,  and  the  sheriff  knows  him  to 
be  the  owner,  and  has  no  doubt  about  the  fairness  of  the  discharge,  if  the  sheriff 
should  proceed  with  the  execution  regardless  of  such  discharge,  he  would  prob- 
ably be  considered  a  trespasser.  But  he  must  not  be  so  considered  in  the  present 
case.  He  was  not  obliged  to  take  the  responsibility  of  disobeying  both  the  direc- 
tions of  Austin,  who  gave  him  the  execution,  and  the  precept  of  the  execution 
itself." 

'  Foster  v.  Wiley,  27  Mich.  244.  '  Hunt  v.  Ballew,  9  B.  Mon.  390. 

*  Stoughton  V.  Mott  (15  Vt.  162)  was  an  action  of  trespass  for  seizing  and 
conveying  away  a  sloop  laden  with  arms  and  munitions  of  war.  The  defendant 
justified  under  an  act  of  Congress  which  provided  for  the  seizing  of  vessels  and 
arms  prepared  for  expeditions  against  conterminous  territory  of  foreign  nations 
with  whom  the  United  States  were  at  peace.  On  the  trial  in  the  County  Court, 
a  question  arose  as  to  what  should  be  deemed  the  frontier.  The  judge  instructed 
the  jury  that  it  was  the  boundary  line  between  the  United  States  and  the  jDrov- 
ince  of  Canada;  and  that  unless  the  evidence  satisfied  them  that  the  sloop  was 
to  be  conveyed  beyond  the  line  and  into  the  province  of  Canada,  the  defendant 
had  no  authority  to  seize  and  detain  the  vessel.  The  Supreme  Court  said :  "  The 
term  '  frontier '  embraces  a  tract  of  country,  of  a  greater  or  less  widtii,  bordering 
on,  and  contiguous  to,  the  line ;  and  though  both  the  act  of  Congress  and  the 
plea  speak  of  the  vessel  as  about  to  pass  the  frontier  for  a  place  within  a  foreign 
State  or  colony,  yet  we  do  not  consider  it  necessary,  in  order  to  justify  the  ofh- 
cers  therein  mentioned  in  seizing  and  detaining  a  vessel,  that  the  vessel  should 
actually  be  about  to  pass  the  boundary  line.  Indeed,  such  a  construction  would 
render  the  act  wdiolly  insufficient  and  inoperative.  It  cannot  be,  that  a  vessel. 
with  arms  and  munitions,  might'approach  the  extreme  verge  of  the  frontier,  close 
to  the  line,  where,  as  the  evidence  tends  to  prove,  all  the  arms,  ammunition  and 
munitions  of  war  could  be  taken  therefrom,  and  used  with  the  consent  of  the 
owner  in  forwarding  and  carrying  on  military  operations  within  the  territory  of 


442  TAKING    PERSONAL   PROPERTY    BY  OFFICER.  §  4G9. 

though  regular  on  its  face,  issued  by  a  court  of  competent  juris- 
diction and  regularly  returned,  will  afford  him  no  protection,^ 
It  is  his  duty  to  refrain  from  executing  process  when  notified 
that  it  has  been  superseded ;  and  if  he  do  not,  he  will  become 
a  trespasser.^  Hickok  V.  Coates  ^  was  an  action  of  trespass 
for  carrying  away  personal  property  belonging  to  the  plaintiff. 
The  plea  alleged  that  the  defendant,  as  sheriff,  had  levied  on 
the  property  in  question,  and  that  the  plaintiff,  knowing  that 
fact,  had  improj^erly  obtained  possession  of  it ;  and  that  the 
defendant  peaceably  retook  the  property,  in  order  to  execute 
the  writ  by  virtue  of  which  he  had  levied.  The  replication 
did  not  deny  the  levy,  but  averred  that,  after  the  levy,  the 
plaintiff'  in  the  execution  ordered  the  defendant  (the  sheriff) 
to  suspend  further  jDroceedings,  he,  the  plaintiff'  in  the  execu- 
tion, with  whom  the  property  was  left,  having  sold  it  to  the 
plaintiff  in  this  suit  for  a  valuable  consideration.  It  was  held 
that,  as  the  plaintiff  in  the  execution,  in  consequence  of  the 
directions  given  by  him  to  the  defendant  (the  sheriff'),  lost  his 
lien  upon  the  property,  the  replication  was  good  in  substance.* 

a  foreign  power,  with  whom  the  United  States  were  at  peace,  and  no  officer  of 
the  United  States  be  justified  in  interfering.  We  think  that  the  otficers  men- 
tioned in  the  act  of  Congress  were  authorized  and  justified  by  that  act  in  seizing 
and  detaining  any  vessel  having  on  board  arras  or  munitions  of  war  sailing  in  the 
frontier  and  near  to  the  boundary  line,  and  in  a  direction  to  the  foreign  province, 
if  they  had  probable  cause  to  believe,  and  did  believe,  either  from  the  character 
of  the  vessel,  or  the  quantity  of  arms  and  munitions  on  board,  or  other  circum- 
stances, that  either  the  vessel  or  the  munitions  of  war  were  intended  to  be  em- 
ployed, either  by  tlie  owner  or  any  other  person  with  his  privity,  in  carrying  on 
any  military  expedition  or  operations  within  the  territory  of  a  foreign  power. 
As  the  decision  of  the  court  made  the  justification  of  the  defendants  to  depend 
wholly  on  the  fact  whether  the  vessel  was  about  to  pass  the  boundary  line  of  the 
United  States  into  the  province  of  Canada,  the  decision  was  erroneous,  and  must 
be  reversed." 

'  Slomer  v.  People,  25  III.  70. 

'  Srorrison  v.  Wright,  7  Port.  67.  '  2  Wend.  419. 

*  An  officer  who  has  attached  personal  property  and  delivered  it  to  a  receiptor, 
may  take  it  from  the  owner,  who  has  been  allowed  to  retain  it  by  the  receiptor. 
Bond  V.  Padelford  (13  Mass.  Bfi4),  was  an  action  of  trespass  against  a  deputy 
sheriff  for  taking  and  carrying  away  cattle.  It  appeared  that  the  defendant, 
having  attached  the  cattle,  witliout  removing  them,  took  an  accountable  receipt 
for  them  from  one  Flagg,  and  that  the  defendant  afterwards  took  the  cattle  out 
of  the  plaintiff's  possession.  Counsel  for  plaintiff  contended  that  the  defendant, 
by  taking  a  receipt  for  the  cattle,  waived  his*  special  property  in  them.  The 
court,  in  nonsuiting  the  plaintiff,  said:  "This  action  is  conceived  on  mistaken 
principles.  The  present  plaintiff  had  no  interest  in  the  agreement  made  between 
the  defendant  and  Flagg.     He  had  no  right  to  the  custody  or  use  of  the  cattle 


§  471,  LIABILITY   OF   OFFICER   IN   SEIZING   GOODS.  443 

5.  Dutij  and  liability  of  officer  in  seizing  goods. 

§  470.  At  common  law,  when  personal  tangible  property 
is  seized  by  virtue  of  an  execution,  it  forthwith  vests  in  the 
sheriff,  and  the  plaintiff  in  the  execution  cannot  meddle  with 
it.*  If  it  is  taken  away,  none  but  the  sheriff  can  retake  it, 
or,  by  action  recover  it  or  the  value  of  it.  The  property 
when  once  levied  upon,  is  in  the  custody  of  the  law,  and  the 
sheriff  is  bound  to  preserve  it  against  all  the  world  for  the 
purpose  of  satisfying  the  judgment.  To  him  alone  can  the 
plaintiff  look  for  the  application  of  it  to  this  purpose.^ 
Where  an  officer  leaves  property  levied  on  in  the  hands  of 
the  debtor  in  the  execution,  the  officer  becomes  as  to  the 
creditor  the  insurer  of  the  property  against  its  loss.^ 

§  471.  It  is  the  duty  of  an  officer  having  an  attachment, 
to  whom  goods  of  the  debtor  are  shown,  to  seize  them,  take 
them  into  his  custody,  and  keep  them  under  his  control,  so 
that  he  may  have  them  to  answer  any  judgment  which  the 
plaintiff  in  the  suit  may  recover.  If  the  officer  chooses  to 
deliver  them  into  the  hands  of  a  third  person  on  his  receipt 
and  promise  to  have  them  forthcoming,  still,  the  law  con- 
siders the  goods  in  the  hands  of  the  officer,  and  such  third 
person  is  but  his  servant.     The  officer  ought  to  perform  this 


after  they  were  attached.  He  held  them  merely  by  the  indulgence  and  at  the 
pleasure  of  the  officer,  or  Flagg,  w.ho  can  be  considered  in  this  transaction  in  no 
other  character  than  as  the  servant  of  the  officer.  Flagg  could  have  maintained  no 
action  for  the  cattle  in  his  own  name.  Bat  he  might  lawfully,  at  any  time,  have 
taken  them  out  of  Bond's  possession,  notwithstanding  any  contract  between  him 
and  the  officer.  So  might  the  officer,  although  he  had  made  a  return  of  the  writ. 
The  special  property  remained  in  liim,  and  he  had  a  complete  right  to  the  posses- 
sion ;  and  his  exercising  that  right  v/as  no  injury  to  Bond." 

The  taking  of  property  attached  from  the  possession  of  the  officer  who  made 
the  attachment,  by  one  who  had  no  authority  to  seize  it,  is  not  within  the  reason 
which  may  excuse  the  non-production  on  the  ground  of  inevitable  accident.  It 
might  be  very  mischievous  to  hold  that  tliis  furnished  any  excuse,  except  it 
should  be  for  delay  until  the  sheriff  could  pursue  the  trespasser  to  judgment 
(Lovell  v.  Sabin,  15  N.  llamp.  29). 

'  Skinner  v.  Stuart,  39  Barb.  206. 

"  Browning  v.  Ilanford,  5  Denio,  586.  The  chancx3llor,  contra  ;  s.  p.  5  Hill, 
588,  per  Cowen,  J. ;  s.  c.  7  lb.  120. 

*  A  purchaser  at  an  execution  sale,  who  takes  possession  of  the  property  pur- 
chased against  the  command  of  the  officer,  is  a  trespasser,  though  he  be  the 
plaintiff  iu  the  execution  (Garner  v.  Willis,  Breese,  21)0). 


444  TAKING    PERSONAL   PROPERTY    BY   OFFICER.  §  472. 

duty  opeiily  aud  fairly,  that  a  debtor  attentive  to  his  affairs 
may  not  be  deprived  by  him  of  any  opportunity  which  his 
situation  affords  to  prevent  expense  and  the  waste  and  de- 
struction of  his  property.  ^  The  officer  in  the  discharge  of 
his  duty  on  occasions  of  this  kind  must  be  allowed  the  exer- 
cise of  some  discretion,  and  is  not  to  be  made  liable  for  every 
trivial  mistake  in  judgment  he  may  make  in  doubtful  cases. 
But  tlie  discretion  allowed  him  must  be  a  sound  discretion, 
exercised  with  perfect  good  faith,  and  with  an  intent  to  sub- 
serve the  interests  of  both  the  debtor  and  the  creditor.  *  If 
he  seize  property  beyond  the  limits  of  his  territorial  jurisdic- 
tion, he  will  be  liable  in  trespass  to  the  owner.  ^ 

§  472.  An  officer  is  not  bound  to  attach  and  take  posses- 
sion of  property  already  under  attachment,  unless  it  is  suffi- 
cient to  pay  the  debt  secured  by  the  previous  attachment ; 
and  if  he  do  so,  he  will  be  deemed  a  trespasser.  ^  Where, 
however,  a  receiptor  of  property  attached,  has  permitted  the 
debtor  to  hold  and  use  it  as  owner,  the  attachment  is  re- 
garded as  dissolved  so  far  that  the  property  may  be  attached 
by  another  officer  who  has  no  notice  that  there  is  a  prior 
attachment  still  subsisting.  ■*  f     But  if  the  officer  know  that 

'  Barrett  v.  White,  3  N.  Hamp.  210.  "  Parmlee  v.  Leonard,  9  Iowa,  131. 

'  West  River  Bank  v.  Gorham,  38  Vt.  649. 

*  Robinson  v.  Mansfield,  13  Pick.  139;  Denny  v.  Willard,  11  lb.  519. 

*  It  being  the  interest  of  both  the  debtor  and  the  creditor,  that  property 
attached  should  be  preserved  and  not  be  wasted,  some  arrangement  has  in  gen- 
eral been  made  to  prevent  the  damage  which  hay  and  grain  in  the  straw  must 
sustain  by  a  removal.  Either  some  person  has  been  found  in  whose  custody  it 
could  be  left,  or  who  was  willing  to  become  responsible  for  the  delivery  of  it 
when  demanded ;  or  it  has  been  in  some  other  way  secured  in  the  place  where 
attached.  It  is  believed  to  have  been  very  rare  that  hay  or  grain  in  the  sheaf, 
has  been  removed  from  a  barn;  and  when  it  has  been,  it  was  only  when  small 
quantities  were  attached.  In  this  way  creditors  have  been  enabled  to  seize  this 
sort  of  property  to  secure  their  debts  without  any  material  injury  to  the  debtor. 
There  is  a  close  analogy  between  attachments  upon  mesne  process  and  a  distress 
at  common  law  to  compel  an  appearance  or  the  performance  of  a  duty.  In  En- 
gland the  common  law  was  altered  on  the  subject  of  distress  by  the  statute  of  2 
W.  &  M.  cli.  5,  which  enacted  that  any  person  having  rent  in  arrear,  on  a  de- 
mise, might  seize  sheaves  or  shocks  of  corn,  or  corn  in  the  straw  or  loose,  or  hay 
in  a  barn,  granary,  or  upon  a  hovel,  stack  or  rick,  or  otherwise,  upon  any  part 
of  the  land  charged  with  such  rent,  and  lock  up  aud  detain  the  same  in  the  place 
where  found,  so  as  such  corn  be  not  removed  to  the  prejudice  of  the  owner  (Ba- 
con's Abr.  Distress,  D. ;  Co.  Litt.  47,  a,  i\  o  Bl.  Com.  9,  10). 

t  Where  A.,  a  deputy  sherifi",  attached  a  horse  as  the  property  of  another. 


§  472.  LIABILITY    OF   OFFICER  IN   SEIZING   GOODS.  445 

there  is  a  siibsistino;  attachment  and  an  unrestricted  contract 
of  bailment,  he  cannot  acquire  a  lien  by  attaching  it,  although 
the  debtor  at  the  time  have  the  possession  of  the  property.  ^ 
One  who  buys  personal  property  at  a  public  judicial  sale,  may 
leave  it  with  the  defendant  in  the  execution  without  making 
it  liable  to  be  taken  under  another  execution.  It  must  be 
left,  however,  under  such  a  contract  of  bailment  as  would  in 
law  protect  it  from  the  bailee's  creditors  the  same  as  if  he 
had  never  been  the  owner  of  it.  It  may  be  hired  or  loaned 
with  safety.  But  if  it  be  sold  or  given,  the  purchaser  parts 
with  his  title,  and  cannot  maintain  trespass  against  anybody 
for  taking  it,  ^ 

and  left  it  with  the  owner  who  claimed  the  horse,  but  agreed  to  redeliver  it  to 
the  officer,  and  afterward  B.,  another  deputy  sheriff,  with  process  against  the 
same  debtor,  attached  the  horse  and  carried  it  away,  and  while  the  horse  was  in 
B.'s  possession  A.  seized  it  and  sold  it  on  his  execution;  it  was  held  in  an  action 
of  trespass  by  B.  against  A.  that  the  plaintifi'  was  entitled  to  recover  the  value  of 
the  horse,  Fisher  v.  Cobb,  6  Vt.  622,  Royce,  J.,  dissenting  as  to  the  right  of  the 
plaintiff  to  recover  the  value  of  the  property. 

Where  an  officer  after  attaching  personal  property  neglects  to  perfect  his  lien 
created  by  his  attachment,  and  it  is  afterward  taken  from  his  custody  by  another 
officer  under  a  second  writ  of  attachment  against  the  same  debtor,  and  the  prop- 
erty is  sold  by  the  second  officer  under  an  execution  obtained  in  the  second  suit, 
and  the  avails  applied  thereon,  the  first  officer  can  recover  only  nominal  damages 
against  the  second  officer  for  such  taking  (Goodrich  v.  Church,  20  Vt.  187). 

Where  an  officer  upon  attaching  personal  property  places  it  in  charge  of  a 
person  and  takes  his  receipt  for  it,  and  the  latter  transfers  the  property  to  an- 
other, who  gives  the  receiptor  a  bond  to  indemnify  him  against  the  receipt,  the 
officer  may  take  the  property  out  of  the  transferee's  hands  at  any  time  during  the 
pendency  of  the  attachment  (Briggs  v.  Mason,  31  Vt.  433). 

Where  a  bailee  of  goods  which  are  attached,  gives  a  receipt  for  them  promis- 
ing to  redeliver  them  to  the  officer  on  demand,  and  afterwards  appropriates  the 
goods  to  his  own  use,  he  may  show  in  an  action  of  trespass  brought  against  him 
by  the  debtor,  that  the  goods  were  his  own  property  (Barron  v.  Cobleigh,  UN. 
Hamp.  557).  It  is  somewhat  difficult  to  reconcile  with  the  foregoing  the  case  of 
Bursley  v.  Hamilton,  15  Pick.  40.  There  the  defendant  gave  a  receipt  for  articles 
attached,  promising  to  redeliver  them  on  demand.  In  an  action  on  the  contract 
it  w^as  proved  that  the  property  attached  belonged  to  the  defendant  and  not  to 
the  debtor;  but  it  was  said  by  Shaw,  C.  J.,  that,  '"in  an  action  to  enforce  the 
promise,  he  is  precluded  from  alleging  property  in  himself  by  way  of  defense." 

A.  sheriff  having  levied  upon  goods,  left  them  in  the  custody  of  a  third  per- 
son, under  an  agreement  under  seal  that  they  should  be  redelivered  at  a  certain 
time  and  place,  and  on  failure  thereof  that  such  person  should  confess  judgment 
for  the  amount  of  the  debt  and  costs  in  the  suit,  and  the  cost  of  the  writ.  It  was 
held  that  the  sheriff  had  not  such  a  possession  of  the  goods  as  would  entitle  him 
to  maintain  trespass  against  the  defendant  in  the  execution  for  taking  them 
away  (Lewis  v.  Carsaw,  15  Penn.  St.  R.  31). 

'  Young  V.  Walker,  12  N.  II.  502;  Whitney  v.  Farwell,  10  lb.  9;  Carpenter 
v.  Cummings,  40  lb.  158. 

*  Dick  V.  Cooper,  12  Harris,  217. 


44G      TAKING  PERSONAL  PROPERTY  BY  OFFICER.    §  473. 

§  473.  An  officer  may  become  liable,  even  where  lie  acts 
ill  perfect  good  faitli.  If,  for  instance,  lie  seize  the  goods  of 
A.  under  a  writ  against  him,  and  it  subsequently  appears 
that  they  were  exempt,  it  will  be  no  justification  that  the 
property  belonged  to  A.  The  direction  to  attach  always 
includes  the  idea  of  attachable  property,  and  the  officer 
takes  it  at  his  peril  in  this  respect ;  and  if  it  prove  not  to 
have  been  attachable,  he  is  a  trespasser.^  The  mere  silence 
of  the  party  would  furnish  no  excuse.^  Ignorance  of  the 
officer  would  not  be  a  defense ;  but  proof  of  knowledge  on 
his  part  that  the  goods  were  exempt  would  be  a  strong 
circumstance  in  aggravation.^*  Where,  however,  the  law 
exempts  certain  articles  to  be  selected  by  the  owner  from 
seizure  and  sale  on  execution,  an  action  of  trespass  cannot 
be  maintained  against  the  officer  for  selling  them,  unless  the 
plaintiff  show  that  at  the  time  of  the  levy,  or  within  a  short 
time  thereafter,  he  selected  the  articles,  and  gave  the  officer 
•notice  that  he  had  done  so.*  f 


^  Gibson  v.  Jenney,  15  Mass.  205;  Howard  v.  Williams,  2  Pick.  80;  Foss  v. 
Stewart,  14  Maine,  312;  Beau  v.  Hubbard,  4  Cusb.  85;  Brown  v.  Wait,  19  Pick. 
470;  Deyo  v.  Jennison,  10  Allen,  410;  Buckingbam  v.  Billings,  I'd  Mass.  82; 
Iloyt  V.  Van  Alstyne,  15  Barb.  568;  Dow  v.  Smith,  7  Vt.  465;  Crocker  v.  Spen- 
cer, 2  D.  Chipmau,  68;  Leavitt  v.  Metcalf,  2  Vt.  342;  Kilburn  v.  Deming,  lb. 
404;  Spooner  v.  Fletcher,  3  lb.  133;  Fry  v.  Canfield,  4  lb.  9;  Haskill  y.  Andros, 
Ih.  609;  Hart  v.  Hyde,  5  lb.  328;  Leavitt  v.  Holbrook,  lb.  405. 

^  Frost  V.  Mott,  34  K  Y.  R.  253.  '  Lynd  v.  Picket,  7  Minn.  184. 

*•  Frost  V.  Shaw,  3  Ohio,  N.  S.  270. 

*  In  has  been  held,  in  North  Carolina,  that  an  ofBcer  who  seizes,  under  exe- 
cution, privileged  articles,  such  as  arms  for  muster,  does  not  thereby  become  a 
trespasser,  unless  he  seizes  them  knowing  that  they  are  privileged  (,Tlie  State  v. 
Morgan,  3  Iredell,  186). 

t  In  New  Jersey  it  has  been  held  that  an  officer  may  seize  and  hold  goods 
imder  an  attachment  or  execution  until  he  can  inventory  and  appraise  them,  al- 
though the  goods  are  exempt  from  execution  (Bonnell  v.  Dunn,  5  Dutch.  N.  J. 
R.  435). 

In  an  action  against  a  sheriff  for  levying  upon  property  exempt  from  execu- 
tion, the  07ms  proTiandl  to  show  that  the  property  is  exempt  rests  on  the  plaintiti' 
(Carnrick  v.  Myers,  14  Barb.  9). 

It  is  not  competent  for  the  defendant  to  prove  that  the  goods  were  mortgaged 
by  the  plaintiff  without  consideration  and  in  order  to  defraud  his  creditors.  If 
the  goods  were  exempt  from  attachment  for  the  plaintiff's  debts,  he  did  no 
wrong  to  creditors  by  mortgaging  them  without  consideration  or  otherwise,  such 
a  mortgage  not  being  fraudulent,  and  not  rendering  goods  liable  to  attachment 
"which  were  not  so  otherwise  (Bean  v.  Hubbard.  4  Cush.  85). 

Trespass  is  the  proper  form  of  action  at  common  law  for  seizing  goods,  by 
virtue  of  an  attachment,  which  are  exempt.     But  now,  in  Massachusetts,  under 


§  474.  LIABILITY   OF   OFFICER  IN   SEIZING   GOODS.  447 

§  474.  An  officer  is  not  authorized  by  virtue  of  a  precept 
against  one  person  to  take  and  sell  the  property  of  another. 
He  must  ascertain  at  his  own  risk  that  the  property  to  be 
taken  and  sold  is  the  property  of  the  person  against  whom 
he  has  a  precept.  And  he  is  not,  in  doubtful  cases,  obliged 
to  take  it  without  a  full  indemnity.  The  owner  of  property 
against  whom  he  has  no  precept  is  not  obliged  to  notify  him 
before  he  will  be  entitled  to  maintain  an  action,  unless  the 
owner  has  so  conducted  with  his  own  property  as  to  forfeit 
his  legal  rights ;  ^  and  it  makes  no  difference  that  the  plaint- 
iff in  the  execution  assured  the  officer  that  they  were  the 
defendant's  goods.^  In  trespass  by  J.  J.,  the  elder,  against 
the  sheriff  and  H.,  the  sheriff'  justified  under  Sifi.fa.  issued 
against  the  goods  of  the  plaintiff  by  H.  Replication  that 
the  fi.fcL  did  not  issue  against  the  goods  of  the  plaintiff'. 
H.  had  obtained  judgment  against  another  J.  J.,  who  was 
the  son  of  the  plaintiff,  and  thereupon  issued  2iji.fa.  against 
J.  J.,  without  any  further  description,  under  which  the  goods 
of  J.  J.,  the  elder,  were  taken.     It  was  held  that  the  plea 


the  statute  of  1839,  ch.  151,  §  4,  trover  will  equally  well  lie  (Devlin  v.  Stone,  4 
Cusli.  359). 

There  may  be  cases  where  the  taking  of  property  exempted  by  law  would 
furnish  no  ground  for  an  action  of  trespass,  and  where  a  license  to  attach  and  a 
subsequent  attachment  in  pursuance  of  that  license  would  not  only  justify  the 
officer  in  attaching  the  goods,  but  also,  in  selling  them  afterwards,  notwith- 
standing the  debtor  might  attempt  to  countermand  the  permission  to  attach  after 
it  was  executed,  and  to  regain  the  possession  of  the  goods. 

nice  V.  Chase,  9  N.  Hamj}.  178,  was  an  action  of  trespass  against  a  deputy 
sheriff  for  attaching  certain  articles  of  household  furniture,  which  were  exempt  by 
law  from  seizure.  It  was  admitted  that  at  the  time  of  the  taking  it  was  clearly 
an  act  of  trespass;  and  the  question  was,  whether  the  subsequent  declarations  of 
the  plaintiff,  made  to  a  third  person  and  ofl'ei'ed  to  be  proved  in  the  case,  could 
be  given  in  evidence  to  change  the  character  of  the  act  from  a  trespass  to  a  justi- 
fiable taking,  or  operate  as  a  waiver  of  the  right  then  vested  in  the  plaintiff  to 
maintain  an  action  for  such  taking.  The  court,  per  Parker,  C.  J.,  said:  "  The 
answer  is  plain.  A  mere  loose  declaration,  made  to  a  third  person,  without  any 
consideration  paid  by  the  creditor  or  officer,  and  without  any  knowledge  on  their 
part  at  the  time  that  such  a  declaration  had  been  made,  cannot  be  construed  to 
deprive  the  ])laintiff  of  a  right  of  action  which  had  previously  accrued  to  him  for 
tlie  trespass"  (citing  Tufts  v.  Hayes,-  5  N.  Hump.  452). 

'  Lothrop  V.  Arnold,  25  Maine,  136;  Rogers  v.  Weir,  34  N.  Y.  463;  Saunder- 
.son  V.  Baker,  2  W.  Black.  832;  Ackworth  v.  Kempe,  Doug.  40;  Samuel  v.  Duke, 
3  Mees.  &  Wels.  622;  Angell  v.  Keith,  24  Vt.  371. 

'  Bac.  Abr.  N.  S. ;  Roberts  v.  Thomas,  0  T.  R.  88. 


448  TAKING    PERSONAL    PROPERTY   BY   OFFICER.  §  474. 

was  disproved,  and  that  the  writ  afforded  no  justification  to 
the  sheriff.^  * 


'  Jarmain  v.  Harper,  6  Man.  &  G.  827. 

*  It  was  also  held  that  H.  was  liable  in  trespass,  notwithstanding  he  had  not 
in  any  way  interfered  beyond  giving  instructions  to  the  attorney  to  sue  his 
debtor,  J.  J.,  the  son. 

Where  an  officer,  having  separate  executions  against  a  father  and  son,  levied 
on  three  horses  belonging  to  the  son  as  the  property  of  the  father,  and  the  son, 
before  the  day  of  sale,  offered  to  pay  the  execution  against  him,  but  the  officer 
refused  to  accept  payment,  and  sold  the  horses,  it  was  held  that  the  officer  be- 
came a  trespasser  ah  initio  (Parish  v.  Wilhelm,  63  N.  C.  50). 

In  California,  it  has  been  held  that  before  an  officer  can  be  made  liable  for 
seizing  the  goods  of  a  third  person  under  an  attachment,  he  is  entitled  to  notice 
of  the  claim  of  such  third  person  and  a  demand  of  the  goods ;  that  a  conversa- 
tion between  the  claimant  and  the  officer's  bailee  is  not  a  sufficient  notice;  and 
that  the  officer's  right  to  notice  is  not  affected  by  the  fact  that  he  had  obtained 
indemnity  before  seizing  the  goods  (Taylor  v.  Seymour,  6  Cal.  513). 

There  is  no  difference  in  the  law  applicable  to  the  levy  of  an  execution  on 
property  exempt  from  such  levy,  and  a  levy  on  the  property  of  a  third  person  not 
the  execution  debtor  (Williams  v.  Miller,  16  Conn.  143). 

An  inquisition  taken  by  an  officer  is  not  a  justification  to  him  in  an  action  of 
trespass  for  taking  the  goods  of  the  plaintiff,  but  can  only  go  in  mitigation  of 
damages  (Townsend  v.  Phillips,  10  Johns.  98).  The  authorities  referred  to  in 
Bayley  v.  Bates,  8  Johns.  185,  support  this  view,  and  make  a  distinction  be- 
tween an  action  against  the  sheriff  for  taking  goods  not  belonging  to  the  de- 
fendant in  the  execution,  and  an  action  against  him  l)y  the  party  in  the  execution 
for  returning  nulla  lona  upon  the  strength  of  such  an  inquisition.  It  may,  in 
many  cases,  justify  him  upon  a  charge  for  a  false  return  for  omitting  to  act;  but 
not,  in  the  other  case,  for  actually  seizing  goods  not  belonging  to  the  party 
against  whom  he  was  to  proceed. 

Where  goods  seized  under  the  New  York  absconding  debtor  act  are  claimed 
by  a  third  person,  if  the  sheriff,  notwithstanding  the  finding  in  favor  of  the 
claimant,  detain  the  goods  without  taking  a  bond  of  indemnity,  he  cannot  be 
charged  with  anything  beyond  an  act  falling  within  the  ordinary  execution  of 
his  duty;  and  if  it  shou\d  turn  out,  ultimately,  that  the  goods  belonged  to  the 
claimant,  it  will  not  lay  the  foundation  for  damages  beyond  the  value  of  the 
property  (Batchellor  v.  Schuyler,  3  Hill,  386).  The  statute  alluded  to  in  this 
case  provides  that  if  goods  seized  under  the  absconding  debtor  act  are  claimed 
by  a  third  person  as  his  property,  the  sheriff  shall  summon  a  jury  to  try  the 
validity  of  the  claim,  "  in  the  same  manner  and  with  the  like  effect  as  in  case  of 
seizure  under  execution."  If  the  jury  find  in  favor  of  the  claimant,  the  goods 
are  to  be  forthwith  delivered  to  him  or  his  agent,  unless  a  bond  be  given  by  the 
attaching  creditor  to  indemnify  the  sheriff  for  the  detention  of  the  goods.  In 
case  of  such  indemnity,  the  sheriff  is  bound  to  keep  the  goods  in  his  possession 
(N.  Y.  Rev.  Sts.  5th  ed.  vol.  3,  p.  80,  sect.s.  10  &  11).  From  the  language  of 
the  foregoing  statute,  it  might  seem  that  the  sheriff  was  bound  to  redeliver  the 
property  after  inquisition  found  in  favor  of  the  claimant,  unless  a  bond  of  in- 
demnity were  tendered.  The  court,  in  the  above  case,  per  Nelson,  Ch.  J.,  said: 
"The  preliminary  inquiry  before  the  jury  is  not  conclusive  upon  the  parties,  and 
if  the  sheriff,  as  in  case  of  an  execution,  chooses  to  take  the  risk  of  showing,  in 
a  suit  by  the  claimant,  that  the  property  belongs  to  the  debtor,  I  see  no  objec- 
tion to  the  seizure  and  detention  without  the  indemnity.  If  the  bond  were  in- 
tended for  the  benefit  of  the  claimant,  and  not  of  the  sheriff,  it  might  be  other- 
wise; but  the  former  has  no  interest  in  it.  It  is  a  bond  of  indemnity  only, 
intended  exclusively  for  the  security  of  the  officer,  and  with  which  the  claimant 
has  no  concern," 

If  a  marshal,  under  an  execution  of  a  United  States  court,  seizes  the  goods 


§  475.  LIABILITY   OF   OFFICER  IN   SEIZING   GOODS.  449 

§  475.  An  exception  to  the  foregoing  rule  has  been  made 
when  tlie  owner  of  the  goods  has  allowed  the  judgment 
debtor  to  exercise  acts  of  ownership  over  them ;  in  which 
case,  an  action  of  trespass  against  the  officer  lias  not  been 
sustained  without  proof  of  notice,  or  a  demand  upon  him  for 
restitution ;  ^  *  unless  it  be  shown  that  some  actual  damage 


of  a  third  person,  he  may  be  sued  therefor  in  the  courts  of  the  State  (Hanna  v. 
Steinberger,  6  Blackf.  520). 

'  Vose  V.  Stickney,  8  Minn.  75. 

*  Moore  v.  Bowman,  47  N.  H.  494,  was  an  action  of  trespass  against  an  offi- 
cer, for  attaching  the  phiintiff's  mare,  on  a  writ  against  a  tliird  person,  the  mare 
being  at  the  time  in  the  debtor's  stable,  and  seized  by  the  officer  wnth  another 
horse  belonging  to  the  debtor.  The  jury  having  found  a  verdict  for  the  plaintiff 
for  the  value  of  the  horse,  and  interest  from  the  taking,  together  with  exem- 
plary damages,  the  Supreme  Court  directed  judgment  to  be  entered  thereon, 
upon  the  plaintiff's  remitting  the  exemplary  damages.  The  court  said:  "If  the 
horses  were  accidentally  placed  in  the  stable,  without  fraud  on  the  part  of  tlie 
plaintiff,  and  the  defendant  selected  two  as  the  horses  of  the  debtor,  and  at- 
tached them,  intending  to  hold  them  at  all  events,  and  not  temporarily  till  he 
could  get  further  information,  and  he  insisted  upon  holding  tliem  after  notice 
that  one  of  them  belonged  to  the  plaintiff,  he  would  be  liable  in  trespass  if  the 
horse  belonged  to  the  plaintiff,  and  he  was  not  estopped  to  claim  it  by  some 
fraudulent  act  on  his  jxtrt.  Had  the  plaintiff's  and  the  debtor's  horses  been  in- 
termingled so  that  the  officer,  using  due  diligence,  could  not  distinguish  them, 
he  might  perhaps  take  all  and  hold  them  until  there  was  an  opportunity  to  iden- 
tify them.  But  his  right  to  take  possession  and  hold  the  plaintiff's  horse  would 
be  limited  by  the  occasion  for  it,  and  if,  instead  of  taking  it  for  the  hiwful  pur- 
pose, he  took  it  for  the  purpose  of  holding  it  at  all  events,  he  would  be  liable  in 
trespass.  But  it  is  urged  that  the  two  horses  were  so  placed  by  the  fault  and 
negligence  of  the  plaintiff,  and  that,  as  the  defendant  was  thereby  misled,  the 
taking  was  not  unlawful.  Had  they  been  accidentally  placed  in  adjoining  stalls, 
it  is  quite  clear  that  this  would  give  the  defendant  no  right  to  attach  the  plaint- 
iff's horse  as  the  property  of  the  debtor,  any  more  than  to  sell  it  as  such.  He 
might  have  taken  and  dei:ained  the  three  horses  a  reasonable  time  till  he  could 
make  inquiries,  and  ascertain  which  belonged  to  Moore.  But  if,  instead  of  that, 
upon  the  knowledge  he  already  had,  he  selected  these  two,  and  attached  them, 
with  a  determination  to  hold  them  at  all  events,  he  would  be  liable  to  the 
plaintiff  in  this  form  of  action,  and  could  not  justify  the  taking  upon  the  ground 
of  mistake,  any  more  than  if  he  had  taken  the  plaintiff's  horse  alone.  He  would 
have  power  to  detain  the  whole  until  he  could  make  inquiry.  But  if  he  did  not 
take  and  detain  them  for  that  purpose,  he  had  no  right  to  take  the  plaintiff's 
horse  at  all.  This  would  be  illustrated  by  the  supposition  that  he  took  the 
plaintiff's  horse  uf)on  the  ground  that  his  title  was  derived  from  the  debtor,  and 
that  the  sale  was  fraudulent  as  to  the  creditor.  The  language  of  some  of  the 
cases  would  seem  to  imply  that  if  the  goods  were  so  intermingled  that  the  officer 
could  not  select  those  of  the  debtor,  he  miiJ-ht,  without  notice  to  the  other 
party,  attach  and  iiold  tlie  whole  until  those  of  the  other  party  were  designated 
and  claimed  by  him.  Upon  such  views,  the  officer  might  have  taken  all  the 
horses  in  the  stable  where  he  found  tliese,  and  held  them  until  identified  by 
their  owners.  Such  a  doctrine,  we  think,  cannot  be  supported.  It  is  not  neces- 
sary, to  enable  the  sheriff  properly  to  execute  his  precept.  If,  as  in  this  case,  he 
wishes  to  attach  two  out  of  many  horses  in  the  same  stable,  he  is  bound  to  make 
reasonable  efforts  and  inquiries,  in  order  to  ascertain  what  horses  belong  to  the 
debtor.  If  the  various  owners  and  the  debtor  are  at  hand,  he  would  ordinarily 
Vol.  L— 29 


450  TAKrsra  personal  property  by  officer.       §  475. 

lias  accrued  to  the  owner  of  the  goods,  and  tliat  he  has  been 
prevented,  by  the  act  of  the  officer,  from  recovering  posses- 
sion of  them,^  A  further  exception  to  the  liability  of  the 
officer  would  arise  in  case  of  acquiescence  on  the  part  of  the 
owner  of  the  goods  in  their  seizure  and  sale.  In  Fiero  v. 
Betts  &  Hubbell,^  Betts  was  an  officer,  and  Hubbell,  the 
plaintiff  in  an  execution  against  one  Clow,  under  which 
goods  owned  jointly  by  Fiero  and  Clow  were  sold.  As  to 
Betts,  it  appeared  that  Fiero  was  present  at  the  sale  and  bid 
on  a  part  of  the  property  sold,  and  purchased  some  of  the 
property  through  an  agent.  There  was  no  evidence  that  he 
claimed  at  the  sale  any  interest  in  the  jDroperty  sold,  or  that 
he  forbade  the  ^ale  of  any  part  of  it,  or  that  any  objection  was 
made  by  him  to  the  sale  ;  and  it  appeared  that  Betts,  at  the 
commencement  of  the  sale,  declared  that  he  sold  only  the 
right  and  title  of  Clow  to  the  property.  It  was  held  that 
the  questions,  whether  the  plaintiff  consented  to  the  sale, 
and  whether  Betts  sold  only  the  right  of  Clow  in  the  prop- 
erty, should  have  been  submitted  to  the  jury;  and  that  if 
Fiero  either  assented  to,  or  acquiesced  in  the  sale,  or  if  Betts 
only  sold  Clow's  interest  in  the  property,  trespass  could  not 
be  maintained  ag^ainst  him.  So  likewise,  where  one  of  sev- 
eral  administrators  was  present  at  a  levy  upon  the  goods  of 
his  intestate,  and  furnished  to  the  officer  making  the  levy  a 
list  of  the  articles,  and  was  present  at  the  sale  and  made 
statements  to  the"  bidders,  it  was  held  that  he  and  the  other 
administrators  could  not  proceed  against  the  officer  as  a  tres- 
passer.^ If,  however,  the  goods  were  seized  under  an  attach- 
ment, the  action  may  be  maintainedj  notwithstanding  the 


inquire  of  them ;  although,  to  guard  against  interference,  he  might,  while  mak- 
ing such  inquiries,  detain  in  the  stable  such  horses  as  he  had  reason  to  suppose 
might  prove  to  be  those  he  sought.  This  power,  we  think,  is  all  that  is  neces- 
sary, and  is  the  view  that  best  accords  with  the  adjudged  cases.  Nor  do  we 
think  that  the  rule  is  otherwise  where  the  goods  are  carelessly  or  negligently  in- 
termingled, but  without  fraud." 

•  Tancred  v.  AUgood,  4  H.  &  N.  438;  38  L.  J.  Exch.  363. 

^  3  Barb.  633. 

'  Camp  V.  Moseley,  3  Floiida,  171 ;  Ponder  v.  Moseley,  lb.  207 ;  but  see 
Rogers  v.  Fales,  5  Penn.  St.  R.  154. 


§  476.  LIABILITY  OF   OFFICER  IN   SEIZING   GOODS.  451 

owner  came  in  and  filed  his  claim  to  the  property,  and  recov- 
ered judgment  for  its  restitution.^ 

§  476.  Where  property  of  the  wife  is  seized  under  an  ex- 
ecution against  her  husband,  the  officer  is  liable  to  her  in 
damages  for  such  illegal  seizure.^  The  question  most  likely 
to  arise  in  such  case  will  be,  as  to  the  wife's  right  to  the 
goods  as  her  separate  estate.  Bruce  and  Wife  v.  Thompson,^ 
was  an  action  of  trespass  to  recover  the  value  of  property 
sold  by  the  defendant  as  an  officer  upon  execution,  for  the 
sole  debt  of  the  husband,  the  property  being  the  annual 
products  of  the  wife's  land  in  his  possession,  and  carried  on 
at  the  expense  of  the  husband.  The  parties,  before  their  in- 
termarriage, made,  in  contemplation  of  such  an  event,  what 
they  considered  a  mamage  settlement,  which  was  a  stipula- 
tion between  themselves  merely,  and  without  the  interven- 
tion of  trustees,  that  the  wife  should  enjoy  her  separate  prop- 
erty without  interference  on  the  part  of  the  husband.  It 
was  claimed  that  the  marriage  settlement,  as  it  was  called, 
was  sufficient  to  exempt  the  annual  crops  of  the  wife's  land 
from  attachment  and  levy  of  execution  on  the  husband's 
debt.  It  was  held  that  such  a  contract,  executed  without  the 
intervention  of  trustees,  being  incomplete,  would  not,  at  law 
certainly,  have  that  effect;  that,  at  most,  it  was  but  an 
agreement  to  make  a  suitable  marriage  settlement,  and  the 
parties  beneficially  interested,  whether  the  wife  or  children, 
might,  on  application  to  a  court  of  equity,  compel  the  execu- 
tion of  such  a  settlement  as  the  court  should  deem  reasona- 
ble, which  would  then  be  effective  to  protect  the  property  at 
law.*    But  in  Connecticut,  where,  in  trespass  against  a  deputy 

'  Trieber  v.  Blocher,  10  Md.  14. 

'  Mock  V.  Kennedy,  14  La.  An.  32.  »  26  Vt.  741. 

*  The  statute  referred  to  in  Bnice  v.  Thompson,  supra,  was  as  follows:  "  The 
rents,  issues  and  profits  of  the  real  estate  of  any  married  woman,  and  the  interest 
of  the  husband  in  her  rij^ht  in  any  real  estate,  shall,  during  coverture,  be  exempt 
from  attachment,  or  levy  of  execution,  for  the  sole  debt  of  the  husband,  and  no 
conveyance,  l)y  such  husband,  of  such  rents,  issues  and  profits,  &c.,  shall  be  valid, 
unless  by  deoil  of  husband  and  wife."  The  court,  per  Redfield,  Cii.  J.,  said: 
"■  In  regard  to  the  effect  of  the  statute,  which  is  similar  to  thoseof  some  of  the  other 
American  States,  there  seems  to  have  been,  to  some  extent,  a  popular  impression 


452  TAKING    PERSONAL    PROPERTY  BY  OFFICER.  §  477- 

sheriff  for  tlie  wrongful  taking  and  carrying  away  of  a  liorse 
wagon  and  harness,  claimed  by  the  plaintiff  to  be  held  by 
Mm  as  trustee  for  his  wife,  the  plaintiff''  proved  that  he  and 
his  wife  were  married  in  England,  and  that,  at  the  time  of 
their  marriage,  it  was  agreed  between  them  that  whatever 
personal  property  she  had  should  remain  hers  ;  that,  after 
marriage,  they  both  treated  it  as  hers ;  that  they  subsequently 
removed  to  Connecticut ;  that  lie  had  at  all  times  allowed 
her  to  have  the  exclusive  control  of  it ;  and  that  with  some 
of  the  avails  she  had  bought  the  horse  and  wagon  in  ques- 
tion ;  it  was  held  that  the  jury  might  properly  find  that  the 
equitable  title  to  the  property  was  in  the  wife.^  And  in  the 
same  State,  where  a  husband  allowed  his  wife  to  sell  certain 
personal  property,  the  legal  title  to  which  was  in  him,  to  vest 
the  avails  in  bank  stock  in  her  own  name,  and  take  the  divi- 
dends ;  and  after  her  death,  as  her  administrator,  he  sold  the 
stock,  and  deposited  the  money  in  the  savings  bank  to  the 
credit  of  her  estate,  it  was  held  that  the  money  so  deposited 
ought  to  be  regarded  as  part  of  her  estate.^ 

§  477.  By  the  common  law,  the  husband,  by  virtue  of  the 
marital  relation,  succeeded  to  the  ownership  of  the  personal 
property  of  the  wife,  and  was  authorized  to  reduce  the  same 
to  possession,  and  to  retain  it.  In  equity,  the  wife  could 
maintain  an  action  against  her  husband  for  the  protection  of 
her  property,  and  to  restrain  him  from  its  improper  use  and 
destruction.  He  was  also  liable  to  account  to  her  for  her 
separate  estate  received  by  him  without  her  knowledge ;  and 
equity  would  interpose  to  protect  her  in  the  enjoyment  of  it.^ 
Legislation  in  several  States  of  the  Union  has,  to  a  great  ex- 


that  it  would  exempt  the  annual  products  of  the  wife's  land  from  the  control  of 
the  husband  or  his  creditoi's.  Such  was  the  decision  of  the  court  below,  and 
such  the  impression  of  one  member  of  this  court,  at  the  first  argument.  But  a 
careful  examination  of  the  terms  of  the  statute  cannot  fail,  we  think,  to  convince 
all  that  the  Avords  used  have  no  very  marked  fitness  to  express  the  yearly  products 
of  land  which  are  the  joint  results  of  labor  and  the  use  of  the  land." 

'  Smith  V.  Chapell,  31  Conn.  589.  -  Jennings  v.  Davis,  Ibid.  134. 

'  Clancy's  Rights  of  Married  Women,  35 ;  Freethy  v.  Freethy,  42  Barb.  641 ; 
Devin  v.  Devin,"l7  How.  Pr.  R.  514. 


§  477.  LIABILITY  OF   OFFICER   IN   SEIZING   GOODS.  453 

tent,  divested  tlie  husband  of  the  right  to  the  personal  prop- 
erty of  the  wife,  and  placed  it  under  her  direct  control.  In 
those  States,  the  cases  in  the  old  reports  are  of  little  use  in 
the  exposition  of  the  existing  laws  regulating  the  marital  re- 
lations and  defining  the  rights  of  married  women.*  In  New 
York,  where  the  wife  liv^ed  with  her  husband  on  her  own 
farm,  which  was  carried  on  in  her  name,  it  was  held  that 
what  was  raised  thereon,  and  property  taken  in  exchange 
therefor,  could  not  be  taken  by  the  creditors  of  the  hus- 
band.^ f     In  the  same  State,  in  an  action  by  a  married  woman 

'  Gage  V.  Dauchy,  34  N.  Y.  293. 

*  In  Whitney  v.  Whitney  (49  Barb.  319),  which  came  before  the  court  on  de- 
murrer to  the  complaint,  it  appeared  that  the  plaintiff  was  the  owner  of  consid- 
erable property,  most  of  which  consisted  of  a  house  and  lot,  which  had  been  ex- 
changed for  another  parcel  of  real  estate;  that  she  had  sold  the  house  and  lot, 
and  that  a  portion  of  the  avails  of  the  sale,  in  bank  bills,  was  placed  by  her,  upon 
retiring  to  bed  at  night,  in  a  pocket-book  under  her  pillow,  and  was  taken  from 
there  by  her  husband,  the  defendant,  before  she  arose  the  following  morning. 
She  asked  judgment  against  th*e  defendant  for  the  amount  thus  taken.  Ingalls, 
J.,  who  held  tlie  special  term,  the  order  of  which  overruling  the  demurrer  was 
afterward  affirmed,  said:  '*  The  act  of  1S62  provides  a  remedy  for  any  violation 
of  the  rights  of  a  married  woman  in  respect  to  her  separate  propertj*.  As  the 
Legislature  has  thus  conferred  upon  a  married  woman  the  right  to  receive  and  hold 
property  free  from  the  control  of  her  husband,  and  the  act  of  1862  has  provided 
a  remedy  by  which  such  right  is  to  be  protected  and  enforced,  viz.,  by  action  in 
her  own  name,  the  same  as  though  sole,  I  am  of  opinion  that  the  present  action 
can  be  maintained  by  the  plaintifif." 

t  This  was  an  action  of  trespass  for  taking,  by  virtue  of  an  execution,  certain 
personal  property,  belonging  to  a  married  woman,  from  her  farm  on  which  she 
resided  with  her  husband.  At  the  trial  at  the  circuit,  a  verdict  was  found  for 
the  plaintiff,  which  the  general  term  of  the  Supreme  Court  set  aside.  The  Court 
of  Appeals,  in  reversing  the  judgment  of  the  general  term,  said:  "The  act  of 
1849,  in  respect  to  married  women,  was  designed  for  their  safety  and  protection 
from  the  debts  and  contracts  of  the  husband.  It  is  declared  that  the  rents,  issues 
and  profits  of  her  property  shall  not  be  subject  to  the  disposal  of  the  husband, 
nor  be  liable  for  his  debts,  and  shall  continue  her  separate  property  as  if  she  were 
a  single  woman.  The  inquiry  is  naturally  suggested,  whether  the  married  woman 
loses  the  protection  of  this  statute,  if  she  permits  her  husband  to  reside  with  her 
upon  her  own  farm,  and  to  work  on  it  at  his  pleasure,  assisting  her  in  making  it 
productive,  without  any  agreement  between  them  as  to  the  ownership  of  the 
crops,  or  as  to  the  coApensation  for  his  labor.  To  my  mind,  the  answer  is  ob- 
vious. The  principles  of  the  common  law,  as  expounded  by  Clancy  and  Roper, 
when  attempted  to  be  applied  to  the  rents,  issues  and  profits  of  her  estate,  or  her 
separate  property,  are  repealed.  The  demands  of  the  husband's  creditors  are  not 
to  l)e  elevated  above  the  rights  of  the  wife,  under  this  statute.  Her  property 
and  its  income  are  exempted  from  that  liability  in  cases  free  from  fraud.  The 
creditor  who  sells  or  lends  to  a  man  who  has  not  the  means  of  making  payment, 
does  so  at  his  own  hazard,'  and  he  does  not  thereby  make  a  case  for  construing 
this  statute  with  strictness  against  the  married  woman.  According  to  the  argu- 
ment of  the  learned  justice  who  delivered  the  opinion  at  the  general  term  of  the 
Supreme  Court,  if  the  husband  is  permitted  to  reside  with  his  wife,  and  sells  or 
exchanges  any  of  the  property  which  is  the  produce  of  her  farm,  or  the  offspring 


454      TAKING  PERSONAL  PROPERTY  BY  OFFICER.    §  477. 

against  a  sheriff  for  wrongfully  seizing,  on  an  execution 
against  her  husband,  a  quantity  of  hay  and  two  cows,  which 
she  claimed  as  her  separate  property,  the  court  permitted  the 
plaintiff  to  prove,  in  order  to  show  that  she  was  the  owner 
of  the  hay,  that  the  farm  was  in  reality  her  property  at  the 
time  the  levy  was  made,  and  that  the  deed  was  given  to  her 
husband  by  mistake.  The  plaintiff  testified  that  the  first 
knowledge  she  had  of  the  mistake  in  the  deed  was  derived 
from  the  defendant  at  the  time  he  made  the  levy.  She  then 
told  the  defendant  that  she  owned  the  farm  and  the  hay  and 
cows.  After  the  levy  was  made,  and  before  the  hay  and 
cows  were  sold,  the  mistake  in  the  deed  was  rectified  by  the 
husband's  conveying  the  farm  to  a  third  person,  who  recon- 
veyed  it  to  the  plaintiff'.  The  juiy  were  instructed  to  give 
the  defendant  the  benefit  of  the  labor  of  the  husband  of  the 
plaintiff,  so  far  as  it  increased  the  value  of  the  hay.  The 
cows  were  bought  on  credit.     A  note  was  given  for  them  by 


of  her  live  stock,  without  the  express  authority  of  the  wife,  it  is  to  be  deemed  a 
gift  or  dedication  to  the  husband  of  the  articles  sold  or  exchanged.  This  ruling 
maintains  the  ancient  doctrine  in  respect  to  the  personal  estate  of  the  wife,  which 
has  been  permitted  voluntarily  on  her  part  to  come  to  the  possession  of  her  hus- 
band. Such  a  rule  can  be  maintained  only  upon  a  narrow  and  strict  construction 
of  the  statute.  The  fault  of  such  a  construction  is,  that  it  permits  the  mischief 
to  remain  which  the  statute  was  designed  to  remedy.  The  income  and  profits  of 
her  separate  estate  are  not  then  free  from  liability  for  the  debts  of  her  husband. 
It  is  urged,  as  a  reason  for  this  rule,  that  the  labor  of  the  husband  is  entitled  to 
its  reward,  and  that,  if  the  wife  were  single  or  unman-ied,  and  the  husband  had 
entered  upon  her  land  and  raised  a  crop,  without  any  agreement  constituting 
them  landlord  and  tenant,  she  could  not  have  taken  the  crop,  but  would  be  en- 
titled to  recover  only  for  the  use  and  occupation  of  her  land.  '  Surely,'  says  the 
judge,  '  her  relation  to  him  as  a  wife  does  not  confer  greater  rights  than  she 
would  have  had  as  a  feme  sole.''  The  case  is  speciously  presented  in  this  manner. 
Let  us  state  the  fact  a  little  differently.  Let  a  stranger  come  upon  the  land 
where  the  owner,  a.  feme  sole,  resided,  and  using  her  team  and  implements  of 
husbandry  to  cultivate  her  land;  would  it  not  be  implied  that  he  worked  for 
wages,  or  that  he  was  the  servant  or  agent  of  the  owner  ?  ^  Surely,  with  the  stat- 
ute in  her  favor,  her  relations  to  the  laborer,  as  a  wife,  should  not  deprive  her  of 
the  benefit  of  the  same  rule.  It  is  not  competent  for  husband  and  wife  to  make 
an  agreement  between  themselves  for  wages,  nor  for  the  renting  of  the  wife's 
land.  It  should  not  be  inferred  from  the  want  of  an  agreement  of  this  nature, 
which  cannot  be  enforced,  that  the  wife  consented  that  her  husband  should  be 
the  owner  of  the  produce  of  the  land,  or  of  the  offspring  of  her  live  stock.  The 
argument  is,  that  we  must  imply  that  the  wife  consented  that  the  husband  should 
be  the  owner  of  the  crops,  &c.,  which  were  the  products,  in  part,  of  his  care  and 
labor.  The  implication  establishes  a  rule,  and  effects  a  result  that  deprives  the 
wife  of  the  rents,  issues  and  profits  (jf  her  property,  and  is  subversive  of  the  rem- 
edy incorporated  in  the  statute,  and  re-establishes  the  former  mischief." 


I 


§  478.  LIABILITY  OF   OFFICER  IN   SEIZING   GOODS.  455 

the  husband  of  the  plaintiff  and  one  Ryan.  The  plaintiff 
paid  the  note ;  but  not  until  after  the  defendant  had  levied 
on  the  cows.  The  court  charged  the  jury  that,  "  If  the  cows 
were  purchased  at  the  request  of  the  plaintiff,  and  as  her 
property  and  for  her,  she  having  subsequently  paid  for  the 
cows,  they  may  have  been  her  separate  property,  and  she  was 
entitled  to  recover  for  them."  A  verdict  having  been  found 
for  the  plaintiff,  the  Supreme  Court  refused  to  disturb  it.  ^ 

§  478.  If  the  goods  of  a  person,  which  are  distinguishable, 
have  become  intermingled  with  those  of  a  debtor,  without 
fraud  on  the  part  of  the  owner,  an  officer,  who  seizes  the 
whole  under  process  against  the  debtor,  without  inquiry,  will 
not  be  protected.  Accordingly,  where  a  debtor  drove  his 
sheep  into  the  field  of  one  K.,  without  K.'s  consent  or  knowl- 
edge, in  order  to  prevent  their  being  taken  on  execution,  and 
the  officer  who  had  the  execution  entered  into  K.'s  field  and 
drove  away,  not  only  the  sheep  of  the  debtor,  but  some  of 
the  sheep  of  K.,  it  was  held  that,  as  the  sheep  of  the  debtor 
had  become  mixed  with  the  sheep  of  K.,  without  his  fault, 
the  officer  was  bound  at  his  peril  to  see  that  he  took  no  sheep 
belonging  to  K.,  and  that,  in  taking  K.'s  sheep,  he  became  a 
trespasser  ah  initio!^  *  In  an  action  of  trespass  for  taking 
and  carrying  away  a  pair  of  oxen,  it  appeared  that  the  oxen 
were  attached  with  other  cattle  belonging  to  the  brother  of 
the  plaintiff';  that  the  plaintiff  did  not  then  claim  these  oxen, 
but  assisted  in  acting  as  keeper  of  the  stock ;  and  that,  after 


'  Garrity  v.  Haynes,  53  Barb.  596. 

"^  Kingsbury  V.  Pond,  3  N.  Hamp.  511.  And  see  Colwill  v.  Reeves,  2  Camp. 
575. 

*  In  Kingsbury  v.  Pond  (supra),  the  court  remarked  that,  if  the  defendant 
had  requested  the  plaintiff  to  point  out  the  sheep  which  belonged  to  him,  and  he 
hud  refused,  this  might  have  made  the  plaintiff  a  party  to  the  attempt  to  prevent 
the  seizure  of  the  debtor's  sheep,  and  might  have  altered  the  case  very  ma- 
terially. 

Where  the  attachment  of  goods  which,  without  the  fault  of  the  owner,  were 
mingled  with  those  of  the  debtor,  was  rightful  and  justifiable,  it  will  be  for  the 
jury  to  determine  whether  the  neglect  or  refusal  of  the  creditor  to  surrender 
them  on  demand  made  by  the  owner  therefor,  and  offer  by  the  owner  to  point 
them  out,  and  their  subsequent  sale  under  the  process,  made  the  creditor  a  tres- 
passer ab  initio  (Taylor  v.  Jones,  43  N.  Hamp.  25). 


456  TAKING   PERSONAL    PROPERTY   BY   OFFICER.  §  479. 

the  expiration  of  the  attachment,  and  the  oxen  had  become 
separated  from  the  other  cattle,  the  officer  seized  them  on  an 
execution  against  the  plaintiff's  brother.  It  was  held  that 
the  action  might  be  maintained  against  the  officer,  without 
special  notice  to  him  that  the  oxen  were  the  plaintiff's  prop- 
erty, and  without  a  previous  demand.^  '^ 

§  479.  But-  if  o'oods  be  so  intermino-led  with  those  of 
a  debtor  as  not  to  be  distino-uishable,  no  action  will  lie 
against  the  attaching  officer  without  a  demand  and  refusal.^ 
Accordingly,  where  in  an  action  of  trespass  for  taking  sun- 
dry articles  of  personal  property  which  were  attached  by 
direction  of  one  Tibbets,  it  appeared  that  the  goods,  when 
attached,  were  not  only  intermingled  with  those  of  the  debtor 
Rand,  but  actually  marked  with  his  name,  so  that  in  the 
absence  of  the  plaintifl'!,  and  without  his  identifying  and 
pointing  them  out,  it  would  seem  to  have  been  impossible 
for  the  officer  or  Tibbets  to  have  distinguished  them  from 
those  of  Rand ;  it  was  held,  that  both  the  officer  and  Tibbets 
were  justified  in  attaching  and  holding  the  goods  as  Rand's 
until  the  plaintiff  claimed  and  identified,  or  offered  to  identify 


'  Stickney  v.  Davis,  16  Pick.  19. 

'^  Bond  V.  Ward,  7  Mass.  123;  Sawyer  v.  Merrill,  6  Pick.  478;  Lewis  v. 
Whittemore,  5  N.  Hamp.  ,364;  Gilinan  v.  Hill,  36  lb.  311. 

*  In  Treat  v.  Barber  (7  Conn.  274),  which  was  an  action  of  trespass  d^  bonis 
asportatis,  for  attachinji^  and  removing  goods  which  the  plaintiff  claimed  to  own 
by  previous  purchase  from  A.  T.,  her  fttther,  evidence  was  introduced  by  the  de- 
fendant to  show  that,  if  any  of  the  goods  attached  belonged  hono,  Jide  to  the 
plaintiff,  she  had  mingled  them  with  her  father's  goods,  so  that  she  alone  could 
distinguish  them;  and  that,  at  the  time  of  the  attachment,  the  defendant  re- 
quested her  to  select  such  goods  as  belonged  to  her;  but  that  she  refused  to  make 
such  selection,  claiming  the  whole  as  her  own.  It  was  held  that,  if  the  plaintiff 
fraudulently,  and  with  the  intention  of  frustrating  the  defendant's  attachment, 
had  caused  her  goods  and  those  of  A.  T.  to  be  intermingled,  so  as  to  be  insep- 
arable by  the  attaching  creditor,  the  defendant  might  justify  the  taking  of  them  ; 
but  not  if  the  intermingling  was  casual  or  accidental,  and  without  any  design  of 
covering  the  goods.  The  court,  per  Hosmer,  Ch.  J.,  said:  "The  specific  objec- 
tion is,  that  the  plaintiff  would  not  make  the  requested  discrimination.  As  a 
matter  of  courtesy,  if  she  had  admitted  that  part  of  tlie  goods  were  not  her  prop- 
erty, she  ought  to  have  done  it ;  and  I  think  slie  would  be  under  a  moral  obliga- 
tion to  do  so.  But  she  claimed  the  whole,  and  probably  thought  she  had  a  valid 
title.  The  omission  to  give  the  requisite  information  was  neither  a  fraud  nor 
the  violation  of  any  obligation  by  law  put  upon  her.  Under  the  circumstances 
of  the  case,  the  defendants  acted  at  their  peril." 


§  479.  LIABILITY   OF   OFFICER   IN   SEIZING   GOODS.  457 

and  point  tliem  out  and  separate  them  from  those  of  Rand.^ 
In  sucli  case  the  owner  of  the  goods  may,  after  attachment, 
identify  them,  give  notice  to  the  officer,  and  demand  a  re- 
delivery, when  they  must  be  given  up.^  But  until  the  owner 
makes  a  demand,  and  properly  distinguishes  them,  the  officer 
is  not  in  fault,  and  cannot  be  deemed  a  trespasser.  In  Massa- 
chusetts, it  has  been  held  that  if  the  owner  of  the  goods  in- 
forms the  officer  that  divers  of  the  articles  are  claimed  by 
him,  and  exhibits  to  the  officer  a  bill  of  sale  containing  arti- 
cles of  the  same  kind  as  those  attached,  the  officer  will  be 
justified  if  he  select  from  the  whole  quantity  in  his  hands 
enough  to  correspond  with  the  bill  of  sale,  retaining  the  most 
valuable.®  ^' 


^  Taylor  v.  Jones,  42  N.  Hamp.  25. 

=  Wellington  v.  Sedgwick,  12  Cal.  469;  Yates  v.  Wormell,  60  Maine,  495. 

=  Shumway  v.  Rutter,  8  Pick.  443. 

*  In  Parker  v.  Walrod,  13  Wend.  296,  Parker  brought  an  action  in  a  jus- 
tice's court  against  Walrod  for  taking  devices  and  whiffletrees  belonging  to  a 
wagon.  It  was  proved  that  the  defendant,  who  was  a  constable,  levied  on  a 
-wagon  belonging  to  one  Godfrey  by  virtue  of  an  attachment  against  him ;  that 
the  wagon  afterwards  went  into  the  custody  of  Parker,  and  that  while  in  his 
possession  an  employee  of  his  took  the  devices  and  whiffletrees  from  the  wagon 
and  attached  thereto  others  belonging  to  Parker,  and  that  the  defendant  in  this 
action  afterwards  repossessed  himself  of  the  wagon  with  the  devices  and 
whiffletrees  of  the  plaintifiF  attached  to  it.  At  the  trial  before  the  justice  the 
jury  found  for  the  defendant.  But  the  judgment  of  the  justice  was  reversed  by 
the  Common  Pleas.  The  Supreme  Court,  in  reversing  the  judgment  of  the 
Common  Pleas,  said:  "Trespass  will  not  lie  under  the  circumstances  of  this 
case.  The  right  of  Walrod  to  take  the  wagon  is  not  contested.  At  least  the 
plaintiff  pretends  to  no  right  to  the  wagon,  and  founds  his  action  exclusively 
upon  the  taking  of  the  whiffletrees  and  devices,  which  are  conceded  to  have 
been  his.  But  "having  substituted  his  own  for  those  which  belonged  to  the 
wagon  and  were  upon  it  when  he  took  it,  without  the  knowledge  of  the  defend- 
ant, the  defendant  was  not  a  trespasser  for  taking  them  with  the  wagon.  Sup- 
pose the  case  put  by  the  counsel,  that  Parker  had  taken  out  the  linch-pins  be- 
longing to  the  wagon,  and  had  substituted  others  for  them,  or  had  changed  one 
of  the  bottom  boards  or  end  boards,  or  had  put  in  a  new  king  bolt,  or  any  other 
change  not  so  obvious  as  to  attract  the  attention  of  the  officer,  can  it  be  endured 
that  he  should  be  held  liable  as  a  trespasser  for  taking  these  things  thus  attached 
to  the  wagon  by  Ptlrker  himself,  or  his  servant,  in  their  own  wrong.  They 
ought  to  be  considered  as  incident  to  the  principal  thing,  the  wagon,  and  having 
a  riglit  to  take  that,  the  officer  cannot  be  a  trespasser  for  taking  them.  The 
action  of  trover  affords  the  party  under  such  circumstances  all  the  remedy  which 
he  ought  to  have.  The  officer  must  then  have  notice  of  the  claim,  and  upon 
demand  made  can  restore  wliat  docs  not  belong  to  him  without  being  subjected 
to  the  costs  of  a  suit."  The  judgment  of  the  Supreme  Court  was  unanimously 
affirmed  by  the  Court  of  Errors.  The  chancellor  said:  "I  have  no  doubt  that 
the  Supreme  Court  was  right  in  holding  tliatif  the  plaintiff,  or  his  servant,  had 
exchanged  the  whiffletrees  and  devices,  "and  affixed  his  own  to  the  wagon  with- 
out the  knowledge  or  consent  of  the  constable,  an  action  of  trespass  would  not 


458  TAKING    PERSONAL   PROPERTY  BY   OFFICER.  §  480. 

§  480.  The  attachment  of  a  chattel  held  in  common,  on  a 
process  against  one  of  the  tenants  in  common  as  his  sole 
property,  is  not  equivalent  to  a  destruction  of  the  chattel,  so 
as  to  give  the  other  tenant  tlie  right  to  an  action  of  trespass 
against  the  attaching  creditor  who  succeeds  to  the  rights  of 
one  of  the  tenants,  or  the  officer  wlio  made  the  attachment. 
The  right  of  the  cotenant  to  the  possession  of  the  property 
would  be  tolled  for  the  time  being  by  the  attachment,  and 
he  could  not  for  that  reason  maintain  trespass.-^  "^ 


lie  against  the  latter  for  taking  them  away  with  the  wagon  unless  he  was  aware 
of  the  fact  that  they  had  been  thus  changed,  provided  he  was  justified  in  taking 
the  wagon  itself.  Frona  the  evidence  before  the  justice,  there  can  be  no  doubt 
that  the  constable  acted  in  good  faith,  believing  that  the  whiffletrees  and  devices 
were  the  same  which  he  had  originally  attached  with  the  wagon  as  the  property  of 
Godfrey.  It  was  the  plaintiff's  own  fault,  therefore,  that  this  mistake  occurred, 
and  if  any  action  could  be  sustained  against  the  constable  without  returning  to 
him  the  whiffletrees  and  devices  which  actually  belonged  to  the  wagon,  of  which 
I  have  some  doubt  under  the  circumstances  of  this  case,  it  must  have  been  an 
action  of  trover  for  refusing  to  return  the  property  to  the  plaintiff  after  the  con- 
stable was  informed  of  the  mistake  which  had  occurred." 

'  Welch  V.  Clark,  12  Vt.  681. 

*  In  Vermont,  it  was  decided  that  if  an  officer  attach  the  property  of  tenants 
in  common  upon  a  writ  against  one,  take  possession  of  it,  and  hold  it  until  the 
issuing  of  an  execution,  and  then  sell  the  entire  property,  and  thus  divest  the 
interest  of  the  other  tenant,  he  does  not  thereby  become  a  trespasser  ai  initio. 
In  Heald  v.  Sargeant,  15  Vt.  506,  in  which  this  was  held,  the  court  said:  "  lu 
the  case  of  Ladd  v.  Hill,  i  Vt.  164,  it  would  seem  to  have  been  determined  that 
a  sale  upon  execution  of  the  entire  chattel,  although  upon  the  debt  of  but  one  of 
the  tenants  in  common,  did  divest  the  title  of  the  other  tenant,  and  was,  in  law, 
a  conversion  of  his  interest.  Where  the  taking  was  on  the  execution,  the  sale 
would  in  that  view  be  such  an  abuse  of  the  authority  as  would  make  the  officer 
a  trespasser  ab  initio.  We  are  now  asked  to  extend  the  same  rule,  so  as  to  make 
the  taking  upon  the  original  writ  a  trespass.  The  case  of  Melville  v.  Brown,  15 
Mass.  82,  as  understood  by  the  same  court,  in  Weld  v.  Oliver,  21  Pick.  559, 
would  seem  to  be  an  authority  to  that  extent.  But  the  case  as  reported  only 
shows  a  taking  on  the  same  process  on  which  the  sale  was  made.  It  does  not 
seem  to  have  been  much  considered  by  court  or  counsel,  and  being  a  mere  ab- 
stract of  the  point  decided,  cannot  be  much  relied  upon  as  an  authority.  And  it 
being  a  well  settled  point  that  the  attachment  of  the  whole  property,  aud  the 
whole  proceedings  under  the  first  process  were  legal  and  regdlar,  we  could  not 
make  the  officer  a  trespasser  for  any  irregulai'ity  in  the  sale  upon  the  execution, 
which  is  a  distinct  matter." 

Where  an  officer  who  had  an  execution  against  one  of  two  tenants  in  common 
to  whom  salt  in  a  wagon  belonged,  seized  the  horses  for  the  purpose  of  levying 
on  the  salt,  it  was  held  that  he  was  not  a  trespasser  (Blevins  v.  Baker,  11  Ired. 
291). 

The  interest  of  one  of  two  joint  owners  of  personal  property  may  be  attached 
for  his  private  debt,  and  the  property  may  be  removed  by  the  officer,  notwith- 
standing some  of  the  stipulations  contained  in  an  agreement  between  the  joint 
owners  will  thereby  be  violated.  Remington  et  al.  v.  Cady,  10  Conn.  43,  was 
an  action  of  trespass  de  bonis  asport<itis  brought  by  Remington  and  Perry  against 
a  deputy  sheriff.  It  appeared  that  RemingFon  rented  his  farm  to  one  Perry  to  be 
cultivated  '■'■to  tJie  halves,'"  one-half  of  all  the  produce  when  fit  for  market  to  be 

V 

\ 


§  481.  LIABILITY   OP   OFFICER  IN   SEIZING   GOODS-  459 

§  481.  But  where  an  officer  under  an  execution  against  one 
of  two  tenants  in  common  of  goods,  sells  tlie  entire  property, 
he  becomes  a  trespasser,  ab  initio}  *  The  officer  may  how- 
ever lawfully  take  goods  owned  by  tenants  in  common  by 
virtue  of  an  execution  against  one  of  them,  and  sell  the 
interest  of  that  one,  and  deliver  the  property  to  the  purchaser, 
who  will  become  a  tenant  in  common  with  the  other 
owner.^     In  an  early  case  in  New  Hampshire,^  it  was  held, 

delivered  at  a  certain  place  free  of  expense,  and  that  Perry,  having  raised  and 
harvested  a  quantity  of  corn  and  buckwheat,  the  defendant  attached  Perry's  in- 
terest therein  to  secure  the  private  debt  of  Perry ;  that  the  defendant  having 
husked  the  corn  and  winnowed  the  buckwheat,  removed  one-half  of  each,  and 
that  this  action  was  brought  while  the  property  attached  remained  in  the  cus- 
tody of  the  law,  holden  to" respond  to  the  future  judgment.  Tiie  court,  in  hold- 
ing that  the  plaintiffs  were  not  entitled  to  recover,  said:  "It  may  be  readily 
admitted  that  it  was  not  in  the  power  of  the  officer  to  sever  the  joint  ownership 
of  this  property ;  that  he  would  have  been  justified  in  removing  the  whole  or  so 
much  of  it  as  that  Perry's  undivided  interest  in  tliat  which  was  taken  would 
have  been  sufficient  to  answer  the  demands  against  him,  and  that  when  the  prop- 
erty came  to  be  sold  on  execution.  Perry's  undivided  interest  only  could  have 
been  disposed  of.  And  it  may  be  further  admitted  that  the  property  might  have 
been  so  conducted  with,  or  so  disposed  of,  as  to  subject  the  officer,  and  those 
concerned  -with  him,  to  this  aetion.  But  we  are  not  called  upon  to  decide  what 
would  have  been  the  correct  mode  of  proceeding  under  an  execution,  nor  what 
might  have  been  the  unlawful  disposition  of  the  property.  The  action,  it  should 
be  remembered,  was  brought  while  the  suits  under  the  attachments  were  still 
pending;  while  the  property  was  yet  in  the  custody  of  the  law,  and  holden  to 
respond  to  such  judgments  as  might  eventually  be  recovered.  The  case  does  not 
rest  on  the  ground  of  an  unlawful  disposition  of  the  property,  but  upon  the 
ground  of  an  unlawful  taking.  The  argument  upon  this  part  of  the  case  pro- 
ceeds on  the  idea  that  the  officer  might  have  taken,  and  ought  to  have  taken, 
all  the  property,  but  inasmuch  as  he  has  taken  a  part  only,  he  is  a  trespasser. 
It  is  not  very  easy  to  discern  the  connection  between  the  premises  and  the  con- 
clusion. It  would  seem  that  the  power  to  take  the  whole  involved  a  power  to 
take  a  part  only.  Nor  does  it  vary  the  case  that  the  officer  undertook  to  do  a 
nugatory  act,  nor  that  he  called  the  part  of  the  property  which  was  left  Rem- 
ington's and  that  which  was  removed  Perry's.  Neither  the  act  nor  the  declara- 
tions of  the  officer  can  alter  the  law,  nor  in  any  way  affect  the  rights  of  the  parties. 
His  return  shows  that  he  levied  the  attachments  upon  the  undivided  half  of  all 
the  property.  He  confessedly  had  a  right  to  the  whole  under  this  levy.  He  has 
removed  only  a  part,  and  with  regard  to  the  residue  has  left  the  parties  to  the 
same  rights  of  ownership  as  existed  before." 

'  Waddell  v.  Cook,  2  Hill,  47;  note  a,  lb.  p.  49;  Melville  v.  Brown,  15 
Mass.  82;  Sheppard  v.  Shelton,  34  Ala.  652 ;  Johnson  v.  Evans,  7  Man.  &  G. 
340;  Walsh  v.  Adams,  3  Denio,  125;  Fiero  v.  Betts,  2  Barb.  633. 

*  Lothrop  V.  Arnold,  25  Maine,  136. 

'  Petteugill  V.  Bartlett,  1  N.  Hamp.  87 ;  referring  to  Heydou  v.  Heydon,  1 
Salk.  392;  Eddie  v.  Davidson,  Douglass,  650;  Fox  v.  Hanbury,  Cowp.  445;  Smith 
V.  Stokes,  1  East,  363. 

*  In  White  v.  Morton,  22  Vt.  15,  it  was  lield  that  in  such  a  case,  trover 
might  be  maintained  by  the  cotenant  against  the  sheriff  for  his  undivided  share 
of  the  property;  and  in  Smith  v.  Tankersley,  20  Ala.  212,  it  was  held  that  the 
cotenant  might  waive  the  tort,  and  sue  for  the  value. 


460      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  482. 

that  as  the  officer  bad  a  rio;bt  to  seize  the  whole,  and  deliver 
the  same  to  the  pm'chaser  of  the  debtor's  sJiare,  it  was 
immaterial  to  the  other  owner  whether  he  sold  the  whole,  or 
only  the  debtor's  interest,  and  the  sale  of  the  whole  would  not 
1)6  a  trespass.     But  this  decision  was  afterward  overruled.^  ^ 

§  482.  The  share  of  one  of  several  copartners  in  the 
goods  of  the  firm  may  be  attached  and  sold  on  execution 
for  his  individual  debt.  And,  as  incidental  to  this  right,  the 
officer  may  take  possession  of  the  goods  seized,  and  deliver 
the  whole  to  the   purchaser.f     But  if  he    sells  the  entire 


'  Moulton  V.  Robinson,  7  Fost.  550;  approving  White  v.  Phelps,  12  N. 
Hamp.  382. 

*  Mersereau  v.  Norton,  15  Johns.  179,  was  an  action  of  trespnss  brought  by 
Norton  against  Mersereau,  in  a  justice's  court  for  taking  and  selling  a  yoke  of 
cattle.  It  appeared  that  the  cattle  were  owned  by  Norton  and  another  person, 
and  that  they  were  taken  out  of  Norton's  possession,  and  sold  by  the  sheriff 
under  an  attachment;  that  the  jjlaintiff  forbade  the  taking  and  also  the  sale,  but 
said  nothing  al)out  owing  the  cattle;  that  the  defendant  was  present  and 
ordered  the  sheriff  to  take  them,  and  was  also  present  at  the  sale,  and  directed 
the  sheriff  to  proceed.  The  jury  having  found  a  verdict  for  the  plaintiff,  the 
question  before  the  Supreme  Court  was  whether  a  sheriff  had  a  right  under  an 
attachment  to  take  and  sell  property  of  which  the  absconding  debtor  was  only 
a  tenant  in  common,  when  that  projierty  was  found  in  tlie  possession  of  the 
other  cotenant;  and  it  was  held  that  he  had  such  a  right  beyond  doubt,  there 
being  no  other  way  to  get  at  the  interest  of  the  one  against  whom  the  attach- 
ment issued.  The  court  said:  "It  is  observable  in  this  case,  that  although 
upon  the  trial,  it  appeared  that  the  plaintiff  below  and  the  absconding  debtor 
were  tenants  in  common  of  the  oxen,  yet  neither  when  they  were  first  taken, 
nor  when  they  were  sold,  did  the  plaintiff  allege  this,  or  that  he  had  any  claim 
to  the  property.  Had  a  claim  of  property  been  interposed,  the  sheriff  must 
have  summoned  a  jury  to  try  the  right,  and  the  sale  would  have  been  only  of 
the  interest  of  the  absconding  debtor,  as  in  case  of  a  sale  under  an  execution  of 
the  property  of  joint  jiartners.  The  sheriff  in  such  cases,  seizes  all,  and  not  a 
moiety  of  the  goods  sufficient  to  cover  the  debt,  and  sells  a  moiety  thereof 
undivided,  and  the  vendee  becomes  tenant  in  common  svith  the  other  partner. 
Although  the  sheriff  sold  the  oxen  as  the  sole  property  of  Norton,  yet  no  more 
than  his  interest  passed,  and  the  plaintiff  below  became  tenant  in  common  with 
the  purchaser.  The  sheriff'  who  took  the  oxen,  and  all  who  aided  him,  and  the 
purchaser,  must  certainly  have  all  the  rights  and  interest  of  Norton,  the  abscond- 
ing debtor;  and  one  tenant  in  common  of  a  chattel  cannot  maintain  trover  or 
trespass  against  his  cotenant." 

t  There  has  been  some  question  as  to  what  ought  to  be  sold  on  an  execution 
against  an  individual  member  of  a  firm,  whether  it  was  the  partner's  joint  inter- 
est in  the  whole  concern,  subject  to  a  final  settlement,  or  whether  it  was  his  in- 
terest in  each  particular  article.  It  would  seem  that  in  the  King's  Bench 
measures  have  at  times  been  taken  to  secure  the  former  only,  and  protect  the 
rights  of  the  creditors  or  other  partners  in  the  joint  concern,  and  hold  the  prop- 
erty first  liable  to  the  joint  debts;  and  this  seems,  in  some  measure,  to  have  been 
followed  in  Massachusetts.  In  the  Court  of  Common  Pleas,  however,  in  England, 
such  course  has  been  declined,  and  the  parties  have  been  directed  to  seek  all 
such  relief  in  Chancery.     In  Reed  v.  Shepherdson,  2  Vt.  120,  the  court  entirely 


§  483.  LIABILITY  OF  OFFICER  ^IN   SEIZING  GOODS.  461 

property  in  tlie  goods,  it  is  such  an  abuse  of  his  legal  au- 
thority  as  will  make  him  liable  as  a  trespasser  ah  initio^  and 
an  action  may  be  maintained  against  him  in  the  name  of  all 
the  members  of  the  firm.  With  respect  to  such  members  of 
the  firm  as  are  not  parties  to  the  execution  he  is  a  trespasser, 
because  he  has  sold  their  share  of  the  property  to  pay  the 
debt  of  others,  without  any  precept  or  authority  in  law 
authorizing  him  so  to  do ;  and  with  respect  to  the  debtors 
themselves,  because  he  has  sold  their  shares  jointly  with  the 
shares  of  others,  and  thereby  rendered  it  impossible  to  de- 
termine what  proportion  of  the  purchase  money  belongs  to 
them,  and  how  much  of  it  ought  to  be  indorsed  on  the  execu- 
tion, and  because  it  is  their  right  to  have  their  shares  sold 
separately,  to  the  end  that  they  may  not  only  know  the  pre- 
cise amount  for  which  they  are  sold,  but  because  the  sale  of 
a  larger  amount  of  property  in  bulk  may  injuriously  afi^ect 
the  price  by  limiting  the  number  of  bidders.-^  * 

§  483.  An  officer,  by  selling  the  entire  property  in  goods 
on  an  execution  against  the  mortgagor,  will  become  a  tres- 

denied  the  adoption  of  any  such  course  as  a  court  of  law.  It  was  there  holden 
that  the  partnership  effects  could  be  attached  on  the  debt  of  one  partner,  and 
his  interest  sold  on  execution,  and  that  such  taking  and  sale  were  no  trespass  or 
tortious  conversion,  though  the  concern  was  insolvent  and  he  had  no  ultimate 
interest  on  a  final  settlement. 

In  an  action  for  the  wrongful  taking  of  personal  property,  all  the  members 
of  the  plaintiff's  firm,  part  of  whom  were  the  defendants  in  an  attachment  under 
which  the  property  in  question  was  seized  by  the  defendant,  as  sheriff,  claimed 
to  maintain  the  action  against  the  sheriff  as  a  wrong  doer,  on  the  ground  that  he 
had  seized  and  taken  into  his  custody,  under  an  attachment  which  directed  him 
to  attach  and  keep  tlie  property  of  two  only  of  the  three  members  of  which  the 
partnership  consisted,  certain  personal  property  that  belonged  to  the  plaintiffs 
collectively  as  a  partnership.  It  was  held  that  the  sheriff  had  a  right  under 
the  attachment  to  take  and  hold  the  property  (Smith  v.  Orser,  43  Barb.  187; 
aff'd  43  N.  Y.  132). 

A.  and  B.  separately  bought  one-half  of  the  stock  in  trade  of  a  judgment 
debtor,  and  afterward  conducted  the  business  as  partners.  An  oQicer  seized  and 
sold  the  property  under  an  execution  against  the  judgment  debtor.  In  an  action 
of  tres[)ass,  l)y  the  partners  against  the  officer,  it  was  held  that  he  was  liable, 
although  one  of  the  partners  had  bought  in  fraud  of  creditors  (Farrel  v.  Colwell, 
1  Vroom,  123). 

'  Walker  v.  Fitts,  24  Pick.  191;  Melville  v.  Brown,  15  Mass.  82;  Waddell  v. 
Cook,  2  ilill,  47;  Moore  v.  Pennell,  52  Maine,  162. 

*  Such  a  sale  being  illegal,  and  rendering  the  officer  a  trespasser  ah  initio,  the 
partners  will  be  entitled  to  recover  the  full  value  of  the  goods  sold,  leaving  the 
judgment,  to  satisfy  which  the  property  was  sold,  in  no  part  satisfied  (Moore  .v.. 
Pennell,  supra). 


462      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  484. 

passer  ah  initio}  In  Wheeler  v.  McFarland,^  which  is  a 
leading  case,  the  plaintiff  had  a  lien  for  advances  made  by 
him  to  the  judgment  debtor  on  the  property  levied  on  by 
the  sheriff,  who  had  notice  of  the  facts,  but  who,  neverthe- 
less, proceeded  to  take  possession  of,  and  advertise  for  sale, 
the  whole  of  the  property  as  belonging  absolutely  to  the 
debtor.  It  was  held  that,  by  thus  acting,  he  rendered  him- 
self liable  as  a  trespasser  ah  initio,  so  as  to  entitle  the 
plaintiff  to  a  recovery  against  him  in  an  action  of  replevin. 
It  is  true  that  the  lien  of  the  plaintiff  in  that  case  was 
created  by  a  2:>ledge,  and  not  by  a  mortgage,  but  the  rights 
and  interests  of  a  mortgagee  are  as  much  entitled  to  protec- 
tion as  those  of  a  pledgee. 

§  484.  A  mere  wrongful  levy,  without  the  removal  of 
the  property  or  interfering  with  it  in  any  other  way,  will 
make  the  officer  a  trespasser.'^  It  is  enough  if,  by  menace, 
threat,  or  exercise  of  legal  process,  the  owner  is  excluded 
fj'om  the  possession  and  control  of  it.  If  no  possession  is 
taken  by  an  officer  on  an  attachment,  perhaps  the  mere  re- 
turn of  an  attachment  would  not  subject  the  officer  to  an 
action  ;  but  if  the  possession  and  control  are  assumed  to  the 
exclusion  of  the  owner,  the  action  lies.*  Where  an  officer 
had  under  his  control  goods  levied  on,  though  there  was  no 
manual  seizing  of  them,  and  was  about  to  take  them  away, 
and  would  have  done  so,  but  for  the  security  given  him  that 
they  would  be  forthcoming,  it  was  held  that  as  he  had  exer- 
cised dominion  over  them,  he  was  liable.^  So,  where  a  col- 
lector levied  on  a  person's  goods  by  virtue  of  a  warrant 
against  other  parties,  issued  for  a  debt  which  he  was  under 
no  obligation  to  pay,  threatened  to  remove  the  property,  and 
gave  the  owner  wiitten  notice  that  he  would  sell  it  on  a 


'  Frisbee  v.  Langworthy,  11  Wis.  375.  '  10  Wend.  318. 

'  Wheeler  v.  McFarland,  10  Wend.  318;  Allen  v.  Crary,  lb.  349;  Stewart  v. 
Wells,  6  Barb.  79 ;  Connah  v.  Hale,  23  Wend.  462 ;  Stevens  v.  Somerindyke,  4 
E.  D.  Smith,  418;  Gibbs  v.  Chase,  10  Mass.  125;  Miller  v.  Baker,  1  Mete.  27; 
Paxton  V.  Steckel,  2  Penn.  St.  R.  93 ;  ante,  §  422. 

*  Hart  V.  Hyde,  5  Vt.  328.  '  Wintringham  v.  Lafoy,  7  Cowen,  735. 


§  484.  LIABILITY   OE   OFFICER  IN   SEIZING  GOODS.  463 

specified  day,  if  lie  did  not  previously  pay  the  demand,  and 
lie  paid  it  when  the  collector  was  about  to  remove  his  prop- 
erty for  sale,  it  was  held  that  the  collector  was  liable  in 
trespass.^  In  Robinson  v.  Mansfield,^  it  was  contended,  on 
the  part  of  the  defendants,  that  as  the  horse,  wagon,  and 
harness,  for  the  taking  of  which  the  action  was  brought, 
were  delivered  to  the  plaintiff  upon  his  receipt,  and  were  not 
removed,  there  was  no  asportation,  and  that  a  mere  technical 
attachment  would  not  support  the  action ;  that  if  the  action 
would  lie,  the  damages  must  be  nominal,  as  the  property 
went  instantly  back  into  the  hands  of  the  plaintiff,  and  he 
liad  ever  since  had  the  enjoyment  of  it ;  and  that  the  con- 
tract for  redelivery  made  no  difference,  it  being  void  for 
want  of  consideration,  if  the  officer  committed  a  trespass  in 
attaching  it.  It  was  held,  however,  that  as  the  property 
was  delivered  to  the  plaintiff  on  a  contract  to  redeliver  it 
to  the  officer  on  demand,  it  was  to  be  regarded  as  if  it  had 
been  delivered  to  a  strano;er  on  a  like  contract.* 

'  Wetmore  v,  Campbell,  2  Sandf.  341. 

'  13  Pick.  139;  and  see  Phillips  v.  Hall,  8  Wend.  610. 

*  Where  the  sheriff  takes  the  property  of  B.  upon  an  execution  against  A.,  it 
is  an  act  done  in  his  official  capacity,  within  the  statute  of  New  York  requiring 
suits  against  sherifis  and  coroners  for  official  acts  to  be  brought  within  three 
years  (Dennison  v.  Plumb,  18  Barb.  89).  In  Mori  is  v.  Van  Voast,  19  Wend.  283, 
the  action  was  trespass.  The  defendant  alleged  the  taking  of  the  property  in 
his  official  capacity  as  sheriff,  and  pleaded  the  three  years'  statute  of  limitation. 
It  was  held  that  the  statute  had  no  application  to  the  case;  that  it  applied  only 
to  cases  of  official  liability  such  as  enable  the  aggrieved  party  to  resist  the  official 
bond;  that  if  the  defendant  was  guilty  of  a  trespass,  he  could  not  maintain  that 
tlie  liability  in  the  case  was  incurred  by  doing  an  act  in  his  official  character  ; 
that  the  act  might  have  been  done  colore  but  not  viriute  officii  In  Ex  parte 
Reed,  4  Hill,  572,  judgment  had  been  recovered  against  Hart,  th^  sheriff  of  New 
Y'ork,  in  trespass,  for  the  seizure  of  the  goods  of  Reed  under  afi.fa.  Hart  had 
attempted  to  justify  the  seizure  as  sheriff.  A  motion  was  made  for  leave  to 
prosecute  the  official  bond  of  the  sheriff.  It  was  denied  upon  the  ground  that 
the  act  of  Hart,  for  which  judgment  had  been  recovered,  did  not  come  within 
the  condition  of  the  bond.  It  was  held  that  the  words  could  not  be  extended 
beyond  nonfeasance  or  misfeasance,  in  respect  to  acts  which,  by  law,  he  is  re- 
quired to  perform  as  sheriff;  that  the  sureties  could  not  be  made  liable  for  the 
consequences  of  a  trespass  committed  by  the  sheriff.  Covven,  J.,  said  that  the 
charge  of  a  trespass  assumed  that  the  act  could  not  have  been  virtute  officii,  and 
that  it  was  no  more  the  act  of  the  sheriff,  because  done  colore  officii,  than  if  he 
had  been  destitute  of  process.  In  The  People  v.  Schuyler,  5  Barb.  166,  the  ac- 
tion was  upcm  the  official  bond  of  Schuvler  as  sherilT.  Judgment  had  been 
recovered  by  the  relator  against  Schuyler,  in  an  action  of  trespass  for  taking 
the  property  of  the  relator.  Schuyler,  as  sheriff,  had  taken  xhe  property  of 
Kellogg,   the  relator,   upon  an  attachment  against  the  property  of  one  Fox. 


464      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  486. 

§  485.  An  officer  caunot  legally  stay  in  another's  buildiug 
to  keep  attaclied  goods  therein ;  nor  authorize  any  other 
person  to  remain  therein,  as  keeper  for  a  longer  time  than  is 
reasonably  necessary  to  enable  him  to  remove  the  goods,  un- 
less he  has  the  consent,  express  or  implied,  of  the  owner  of 
the  building,  without  rendering  himself  liable  as  a  tres- 
passer.^ And  where  an  officer,  who  has  entered  on  land,  in 
order  to  make  a  levy  under  an  execution,  remains  there  an 
unreasonable  time,  he  becomes  a  trespasser.  What  is  a 
reasonable  time  when  the  facts  are  not  disputed,  is  a  ques- 
tion of  law.^  Five  hours  of  daylight  was  held  more  than  a 
reasonable  time  to  remove  an  attorney's  desk  and  law  books 
of  not  more  than  two  hundred  dollars  in  value.^ 

§  486.  If  while  an  officer,  w^ho  has  a  right  to  levy  on 
goods  in  a  building,  is  engaged  in  removing  them,  exercising 
reasonable  care,  he  unintentionally  does  some  small  injury  to 
the  building,  he  will  not  thereby  become  a  trespasser  ah 
initio.  But  if  he  remove  the  goods  unnecessanly,  or  at  an 
improper  time,  he  will  be  liable.  Where  an  officer,  in  at- 
taching a  lathe  and  other  machinery  in  a  mill,  found  that 
there  was  a  platform  nailed  to  the  sills  of  the  lathe;  that  the 
lathe  could  not  be  removed  without  taking  the  platform  to 
pieces — the  design  of  the  platform  being  to  accommodate  the 
operator  better  in  the  use  of  the  lathe ;  and  that  it  was  also 
necessary  to  take  down  a  partition  which  had   been  put  at 


The  New  York  Supreme  Covrrt  held  that  no  action  could  be  maintained  upon 
the  bond ;  that  the  act  of  the  sheriff  was  to  be  regarded  as  a  trespass  done 
colore  officii,  and  not  virtute  officii.  But  the  judgment  was  reversed  by  the 
Court  of  Appeals,  and  thus  the  case  of  Ex  parte  Reed  was,  in  effect,  over- 
ruled. 

In  Seeley  v.  Birdsall,  15  Johns.  267,  the  court  remarked  that  there  was  a 
distinction  between  acts  done  colore  officii  and  virtute  officii.  That,  in  the  former 
case,  the  sheriff  is  not  protected  by  the  statute  when  the  act  is  of  such  a  nature 
that  his  office  gives  him  no  authority  to  do  it ;  but  that  when,  in  doing  an  act 
within  the  limits  of  his  authority,  he  exercises  that  authority  improperly,  or 
abuses  the  confidence  which  the  law  imposes  in  him,  to  such  cases  the  statute 
extends. 

'  Malcolm  v.  Spoor,  12  Mete.  279;  Rowley  v.  Rice,  11  lb.  337. 

^  Spoor  V.  Spooner,  12  Mete.  281 ;  Pratt  v.  Farrar,  10  Allen,  519;  but  see  Ash 
V.  Dawnay,  8  Exch.  243,  and  Playfair  v.  Musgrove,  14  M.  &  W.  239. 

'  Williams  v.  Powell,  101  Mass.  467. 


§  487.  LIABILITY    OF   OFFICER    IN   SEIZING   GOODS.  4G5 

one  end  of  the  lathe ;  it  was  held  that  he  had  a  right  to 
remove  the  platform  and  partition  in  a  proper  manner,  if 
found  necessary,  and  that  his  omission  to  replace  them  was 
but  a  non-feasance,  which  did  not  make  him  a  trespasser  ah 
initio}  But  where  an  officer,  having  attached  hay  and  grain, 
removed  them  without  any  necessity,  it  was  held  that  the 
damao-e  and  waste  incident  to  such  removal  must  be  consid- 
ered  as  wantonly  caused  by  the  defendants,  and  that  such 
wanton  and  illegal  use  of  process  worked  a  forfeiture  of  the 
protection  which  the  process  would  otherwise  afford;  and 
furthermore,  that  had  there  been  a  necessity  to  remove  the 
property,  the  doing  of  it  at  an  unfit  and  unseasonable  time, 
when  it  must  inevitably  be  exposed  to  great  and  unneces- 
sary waste,  would  have  been  such  an  abuse  as  to  render  all 
concerned  in  it  trespassers.^^' 

§  487.  An  officer  who  seizes  property  by  authority  of 
law,  must  show  that  he  has  done  all  that  is  required  of  him 
in  order  to  complete  and  fulfil  the  duty  imposed  on  him.  If 
he  does  not  comply  with  the  directions  of  the  writ,  and 
keeps  the  goods  beyond  the  time  when,  by  the  requirements 
of  the  statute,  they  should  have  been  sold ;  or  if  he  fails  to 
keep  them  the  requisite  number  of  days  after  an  authorized 
seizure ;  or  if  the  notice  of  sale  be  insufficient,  or  the  time 
or  place  of  sale  be  unauthorized,  he  becomes  a  trespasser  ah 
initio^  The  defendant  cannot  discharge  himself  of  his  legal 
obligation  by  showing  that  the  plaintiff  had  notice  derived 


'  FuUam  v.  Stearns,  30  Vfc.  443.  '  Barrett  v.  White,  3  N.  Hamp.  210. 

'  Brackett  v.  Vining,  49  Maine,  356 ;  Ordway  v.  Ferrin,  3  N.  Hamp.  69,  con- 
tra;  Knight  V.  Herrin,  48  Maine.  533;  Bond  v.  Wilder,  IS  Vt.  393;  Hall  v. 
Ray,  40  lb.  576;  Gilmorc  v.  Holt,  4  Pick.  258-363;  Smith  v.  Gatea,  21  lb.  55; 
Brightman  v.  GrinncU,  9  lb.  14;  Adams  v.  Adams,  13  lb.  384;  Purrington  v. 
Loring,  7  Mass.  388;  Sherman  v.  Braman,  13  Mete.  407;  Folgcr  v.  Hinckley,  5 
Gush.  2G3;  Carrier  v.  Esbaugh,  70  Penn.  St.  R.  239. 

*  In  this  case,  a  very  large  quantity  of  hay  and  of  grain  in  the  straw  was  at- 
tached and  removed  from  the  barn  forthwith.  The  seizure  was  made  a  little 
after  midnight,  when  t!ie  weather  wafi  very  unfavorable  for  the  removal  of  the 
property,  and  it  resulted  in  great  waste.  The  debtor,  who  resided  about  fifty 
miles  from  the  place  where  the  attachment  was  made,  had  in  his  possession  u 
considerable  amount  of  propertj',  while  the  claims  of  the  attaching  creditor  did 
not  amount  to  a  very  large  sum. 

Vol.  I.—  30 


46C  TAKING   PERSONAL    PROPERTY  BY  OFFICER.  §  487. 

from  otber  sources  of  the  facts  wliicli  tlie  statute  requires  to 
be  made  known  to  him  by  the  defendant,  in  writing.  If  it 
were  so,  a  verbal  notice  would  be  sufficient,  and  the  statute 
would  be  rendered  inoperative  and  useless.  The  plaintiff 
has  a  right  to  insist  upon  the  precise  notice  required  by  law. 
Upon  it  his  rights  and  remedies  may  materially  depend; 
and  unless  he  has  misled  the  defendant  and  induced  him  to 
omit  it,  the  failure  to  give  the  written  notice  in  the  manner 
required  by  the  statute  will  be  a  fatal  defect  in  the  proceed- 
ings, and  deprive  the  defendant  of  his  justification.^*  In 
Vermont,  the  officer  was  held  liable  as  a  trespasser  where  the 
notice  of  sale  of  a  horse  seized  and  impounded  under  the 
statute,  did  not  mention  the  place  where  the  horse  was  to  be 
sold.  The  facts  of  the  case  were  as  follows:  Clark,  being  a 
private  in  a  militia  company  had  neglected  to  appear  on  a 
day  appointed  for  parade,  and  was  fined.  An  execution  Avas 
put  into  the  hands  of  Balch,  the  orderly  sergeant  of  the 

'      '  Coffin  V.  Field,  7  Cush.  355 ;  Sawyer  v.  Wilson,  61  Maine,  529. 

*  In  Smith  v.  Gates,  21  Pick.  55,  the  defendant  justified  the  taking  and  sell- 
ing of  the  plaintiff's  horse,  on  the  ground  that  the  horse  was  at  large  on  the 
highway,  and  the  defendant,  being  a  field  driver,  impounded  him  in  the  common 
pound,  and  the  plaintifl' neglecting  to  pay  the  forfeiture  and  expenses  accruing 
in  consequence  of  the  impounding,  the  horse  was  sold  at  public  auction  to  dis- 
charge the  same.  The  proceedings  in  such  cases,  in  jMassachusetts,  are  regulated 
by  the  Revised  Statutes,  chs.  19  and  113 — the  former  authorizing  the  taking  and 
impounding,  and  the  latter  directing  the  mode  of  proceeding  after  the  beasts  are 
impounded.  It  is  incumbent  on  the  defendant  to  show  that  all  his  proceedings 
have  been  in  entire  conformity  with  the  provisions  of  these  statutes.  Sections 
11  and  12  of  ch.  113  provide  that  if  the  sum  for  which  any  beast  is  impounded 
and  detained  shall  not  be  paid  within  fourteen  days  after  notice  is  given  of  the 
impounding,  two  appraisers  shall  ascertain  and  determine  the  sum  due  from  the 
owner  of  the  beast,  and  if  the  sum  so  found  to  be  due  shall  not  be  forthwith 
paid,  the  person  who  impounded  the  beast  shall  cause  it  to  be  sold  at  auction, 
'•  first  advertising  the  sale  by  posting  up  a  notice  thereof  twenty-four  hours  before- 
hand at  some  public  place  in  the  same  town."  In  the  foregoing  case,  it  appeared 
that  the  appraisement  was  completed  at  half  past  ten  o'clock,  a.  m.,  of  the  30th 
of  May;  that,  quarter  before  ten  o'clock  of  the  same  day,  the  defendant  had 
posted  up  an  advertisement  for  the  sale  to  take  place  at  ten  o'clock,  a.  m.,  of  the 
following  day.  and  that  the  horse  was  actually  sold  at  ten  minutes  after  ten 
o'clock,  A.  M.,  on  the  31st  of  May.  The  property  was  therefore  advertised  be- 
fore the  appraisement  of  the  damages  and  charges,  and  the  sale  took  place  in 
less  than  twenty-four  hours  after  the  appraisement.  It  was  held  that  there  had 
been  such  a  departure  from  the  directions  of  the  statute,  that  the  proceedings 
were  void.  The  court  remarked,  that  entire  strictness  in  such  cases  was  requi- 
site, and  it  was  not  material  whether  any  actual  injury  was  sustained  by  this 
omission  or  neglect  of  the  defendant,  that,  as  the  defendant  had  failed  to  con- 
form to  the  statute,  he  bad  clearly  made  himself  a  trespasser  ah  initio,  and  the 
plaintiff  was  entitled  to  recover  the  value  of  the  horse  so  taken  and  sold. 


§  487.  LIABILITY    OF   OFFICER    IN   SEIZING   GOODS.  467 

company,  for  collection,  who  levied  on  a  horse  belonging  to 
the  delinquent,  advertised  the  same  for  sale,  and  sold  after 
the  usual  time  of  notice.  The  delinquent  having  brought 
his  action  of  trespass  against  Balch,  it  appeared  that  after  the 
advertisement  had  been  posted  up  four  days  it  was  discov- 
ered that  the  place  of  sale  had  not  been  mentioned,  and  that 
.it  was  then  supplied  by  the  officer.  The  sale  which  was  made 
ten  days  afterward,  was  held  by  a  full  court  to  be  irregular^ 
and  the  plaintiff  recovered.  Paddock,  J.,  said :  "  The  only 
object  in  advertising  pro23erty  for  sale  is  to  give  notice  to 
those  who  may  wish  to  purchase  of  the  time  and  place  where 
the  same  will  be  oifered;  and  without  specifying  both„ 
neither  the  spirit  nor  intent  of  the  statute  is  complied  with. 
The  statute  is  to  have  a  reasonable  construction ;  and  if  one 
part  might  be  dispensed  with  to  suit  one  case,  another  part 
might  be  to  favor  some  other,  and  so  on  until  the  whole 
statute  would  be  frittered  away.  The  time  might  be  better 
omitted  than  the  place  where  a  sale  is  to  be  made ;  for,  if 
the  time  were  omitted,  one  intending  to  purchase  could  em- 
ploy another  to  give  him  notice  when  the  article  was  set  up; 
but  the  place  being  omitted,  he  could  employ  no  means  to 
be   informed.'"^*      But  an  improper   postponement   by  an 


'  Sutton  T.  Beach,  2  Vt.  43. 

*  Carnrick  v.  Myers,  14  Barb.  9,  was  an  action  brought  to  recover  the  value  of  a 
pair  of  horses  sold  by  the  defendant,  a  deputy  sheriff,  to  satisfy  executions  in  his 
hands.  The  property  in  question  was  levied  on  in  February.  In  June  defendant 
offered  it  for  sale,  but  after  one  or  two  bids,  the  plaintiff  objecting  to  the  sale  on 
the  ground  that  the  horses  were  exempt,  the  sale  was  postponed,  and  an  arrange- 
ment was  made  by  which  the  plaintiff  turned  out  the  horses  to  be  sold  at  a  fut- 
ure day,  in  case  the  execution  should  not  in  the  mean  time  be  paid.  The  horses 
were  subsequently  sold  by  the  defendant,  the  sale  being  made  after  sundown. 
Held,  that  as  a  sale,  by  virtue  of  an  execution,  made  after  sunset,  was  void  under 
the  statute,  the  defendant  l)ecame  a  trespasser  «/>  initio.  Parker,  J.,  in  deliver- 
ing the  opinion  of  the  court,  said:  "I  think  the  referee  was  right  in  holding 
that  the  effect  of  this  was,  tliat  the  proceedings  of  the  sheriff  were  void  ah  initio. 
The  levy  was  made  by  virtue  of  the  execution  last  received  by  the  sheriff.  It 
was  not  until  four  months  afterwards,  when  the  defendant  was  about  to  sell  the 
property,  and  after  the  plaintiff'  had  objected  to  the  sale,  on  the  ground  that  the 
horses  were  exempt,  that  tlie  plaintiff  "turned  out  the  property,'  as  the  witness 
calls  it,  to  the  sheriff".  It  was,  in  fact,  nothing  more  than  waiving  a  claim  of 
exemption  to  gain  time;  that  is,  it  was  giving  a  consent  to  what  the  defendant 
had  already  done,  and  liad  a  right  to  do,  under  the  last  execution.  I  think  the 
defendant  was  acting  under  a  claim  of  authority  given  by  law^,  and  not  under 
authority  gnven  ijy  the  party.      Under  sucli  circumstances,  the  abuse  by  the  de- 


468       TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  488. 

officer,  of  an  execution  sale,  will  not  render  him  liable  in 
trespass  to  the  judgment  debtor,  if  the  postponement,  in  form 
and  substance,  was  made  at  the  request  of  the  debtor's 
agent.^ 

§  488.  Where  an  officer,  in  taking  property  on  execution, 
conducts  with  it  in  a  manner  different  from  what  the  law  di- 
rects, he  cannot  protect  himself  under  the  execution,  but  be- 
comes a  trespasser  ah  ijiitio}  In  ISTash  v.  Mosher,^  Judge 
Cowen  remarked,  that  all  the  cases  agree  that  the  mere  user 
of  any  article  in  any  way  not  necessary  to  its  safety  or  preser- 
vation, by  a  distrainer,  makes  him  a  trespasser  ab  initio,  for 
the  reason  that,  although  he  took  possession  colorably  under 
a  lawful  authority,  yet  the  subsequ  ent  abuse  leads  to  the 
presumption  that  he  all  along  acted  fraudulently.     But  in 


fendant  would  make  him  a  trespasser  ah  initio^'  (citing  Dumont  v.  Smith,  4 
Denio,  319;  Allen  v.  Crofoot,  5  Wend.  506). 

A  notice  of  s;ile,  insufficient  for  want  of  time,  is  not  cured  by  an  adjourn- 
ment of  the  sale,  eo  as  to  embrace  the  whole  time  required  by  the  statute.  The 
postponement  would  not  cure  the  defect  in  the  original  notice.  The  officer 
"could  not  make  a  valid  sale  at  the  adjournment,  which  would  have  been  in- 
valid if  made  on  the  day  adjourned  from.  Legality  in  such  case  cannot  be 
predicated  upon  illegality  "  (Sawyer  v.  Wilson,  61  Maine,  539). 

An  officer  who  sells  goods  under  an  attachment,  without  complying  with  tlie 
requirements  of  the  statute,  becomes  a  trespasser  ah  initio,  and  may  be  sued,  not- 
withstanding the  action,  in  which  such  property  was  attached,  is  still  pending. 
In  Ross  V.  Philbrick,  39  Maine,  29,  at  tlie  trial  in  the  court  below,  the  defend- 
ant's counsel  requested  the  judge  to  instruct  the  jury  that  as  the  property  sued 
for  was  lawfully  attached,  and  that  suit  still  pending,  the  plaintiff  could  not 
maintain  the  present  action ;  but  the  judge  declined  so  to  instruct.  On  this 
point,  the  Supreme  Court,  per  Cutting,  J.,  said:  "It  is  contended  that  so  long 
as  the  process,  upon  which  the  property  in  controversy  was  attached,  is  pending  in 
court,  the  plaintifi' cannot  sustain  this  action,  because  otherwise  the  defendant 
might  be  compelled  to  pay  twice  for  the  same  property ;  to  the  plaintiff  in  the 
first  instance,  and  subsequently  to  the  attaching  creditor.  If  it  be  so,  it  is  not 
the  only  case  where  the  tort-feaaor  is  made  liable  to  pay  double  or  even  treble 
damages.  Consequences  may  be  more  properly  the  subject  of  consideration  by 
the  party,  before  the  fact,  than  by  the  court  subsequently,  in  determining  the 
law.  An  officer,  who  has  been  guilty  of  a  trespass  from  the  beginning,  cannot 
invoke  to  his  aid  the  process  which  he  has  abused.  lie  places  himself  in  the 
same  situation  he  would  have  occupied  had  he  seized  tlie  property  without  any 
process,  and  taken  it  from  the  owner's  possession.  And  what  consequence  is  it 
to  the  officer,  or  the  attaching  creditor,  that  the  suit  is  pending  when  the  attach- 
ment is  dissolved,  and  can  no  longer  be  made  available  to  satisfy  a  subsequent 
execution? " 

An  officer  is  not  obliged  to  receive  the  amount  of  an  execution  and  interest, 
unless  his  fees  are  also  tendered  (Joslyn  v.  Tracy,  19  Vt.  569). 

'  Wilton  Manuf,  Co.  v,  Butler,  34  Maine,  431. 

'  Bond  V.  Wilder,  16  Vt.  393.  '  19  Wend.  431. 


§  488.  LIABILITY    OF   OFFICER    IN   SEIZING   GOODS,  4G9 

order  to  make  an  officer  liable  as  a  trespasser  ah  initio^  for 
using  personal  property  attached  by  him,  the  property  must 
have  been  injured  or  used  by  the  officer  for  his  own  benefit, 
or  for  the  benefit  of  some  one  other  than  the  debtor.  Paul 
V.  Slason  ^  was  an  action  of  trespass  for  taking  horses,  har- 
ness, a  wagon,  and  other  personal  property.  The  defendant 
justified  the  taking  by  virtue  of  a  writ  of  attachment.  It 
appeared  that  the  defendant  used  the  plaintiffs  team  in  re- 
moving part  of  the  property  attached,  and  that  he  also  used 
a  pitchfork,  belonging  to  the  plaintiff,  for  the  same  purpose. 
It  was  held  that  the  officer  did  not  thereby  become  liable  as 
a  trespasser.*  And  the  officer,  to  be  deemed  a  trespasser 
ah  initio,  must  have  either  been  an  actor  in  the  oris^inal  tak- 
ing,  or  have  made  himself  a  party  thereto  by  his  assent  before 
or  after  the  act.  In  Van  Brunt  v,  Schenck,^  a  schooner  be- 
longing to  the  plaintiff,  was  seized  by  Van  Beureu  an  officer 
of  the  customs,  for  violation  of  the  revenue  laws  of  the 
United  States.  Whilst  the  vessel  was  lying  under  this 
seizure  and  in  the  custody  of  the  officers  of  government,  the 
defendant,  who  was  also  a  custom  house  officer,  applied  to 
Van  Beuren  for  the  use  of  the  schooner  to  carry  his,  the  de- 
fendant's furniture,  from  his  country  seat,  about  eight  miles 
from  the  city  of  New  York,  to  his  house  in  the  city.     The 

'  23  vt.  231. 

'  Anthon's  N.  P.  2d  ed.  p.  217;  s.  c.  11  Johns.  377;  13  lb.  414;  see  4  Denio, 
821. 

*  In  Paul  V.  Slason,  supra,  the  court  said:  "  It  is  true  that,  by  the  theory  of 
the  law,  whenever  an  invasion  of  a  right  is  established,  though  no  actual  dam- 
age be  shown,  the  law  infers  a  damage  to  the  owner  of  the  property,  and  gives 
nominal  damages.  This  goes  upon  the  ground,  either  that  some  damage  is  the 
probable  result  of  the  defendant's  act,  or  that  his  act  would  have  effect  to  injure 
the  other's  right,  and  would  be  evidence  in  future  in  favor  of  the  wrong-doer. 
This  last,  applies  more  particularly  to  unlawful  entries  upon  real  property,  and 
to  disturbance  of  incorporeal  rights,  when  the  unlawful  act  might  have  an  effect 
upon  the  right  of  the  party,  and  be  evidence  in  favor  of  the  wrong-doer,  if  his 
rights  ever  came  in  question.  In  these  cases,  an  action  may  be  supported,  though 
there  be  no  actual  damage  done — because  othertvise,  the  party  might  lose  his 
right.  So  too,  whenever  any  one  wantonly  invades  another's  rights  for  the  pur- 
pose of  injury,  an  action  will  lie,  though  no  actual  damage  be  done.  The  law 
presumes  damage  on  account  of  the  unlawful  intent.  But  it  is  believed  that  no 
case  can  be  found  where  damages  have  beeu  given  for  a  trespass  to  personal 
property,  when  no  unlawful  intent,  or  disturbance  of  a  right  or  possession,  is 
shown,  and  when,  not  only  all  probable,  but  all  possible  damage  is  e.xpressly 
disproved." 


470      TAKING  PEESONAL  PROPERTY  BY  OFFICER.    §  488. 

defendant  accordingly  transported  bis  furniture  in  the  vessel 
as  specified,  and  employed  her  in  plying  between  the  two 
stations  about  two  days,  and  then  returned  her  to  the  custody 
of  Van  Beuren.  The  schooner  being  libeled  and  sold  by 
order  of  the  court,  was  afterwards,  on  the  hearing,  acquitted, 
the  judgment  of  the  court  being  accompanied  with  a  certifi- 
<iate  of  probable  cause  of  seizure ;  and  the  proceeds  of  sale 
were  ordered  to  be  paid  over  to  the  owner  who,  however, 
declined  to  receive  them.  The  present  was  an  action  of  tres- 
pass for  the  use  by  the  defendant  of  the  schooner,  as  above. 
There  was  nothing  which  implicated  the  defendant  as  an  act- 
or in  the  seizure  of  the  vessel,  or  w^hich  showed  the  least  co- 
operation by  him  in  that  act,  any  further  than  the  circum- 
stance that  he  was  one  of  the  custom  house  officers.  It  was 
ruled  at  the  cu'cuit  that  the  improper  use  of  the  vessel,  while 
under  seizure  and  in  the  custody  of  the  officers  of  the  govern- 
ment, rendered  the  defendant  liable  for  the  original  seizure, 
and  made  him  a  trespasser  ab  initio^  and  subjected  hiiu  to 
damages  to  the  value  of  the  vessel  at  the  time  of  her  seizure. 
The  Supreme  Court,  how^ever,  granted  a  new  trial  on  the 
ground  that,  as  the  defendant  was  not  implicated  in  the  first 
taking^,  the  rulino^  at  the  circuit  was  erroneous.  At  the 
second  trial,  it  aj^peared  that  the  seizure  was  ratified  by  the 
defendant,  and  the  court,  in  nonsuiting  the  plaintiif,  held 
that  the  defendant  would  have  been  a  trespasser  ah  initio^  if 
there  had  not  been  a  certificate  of  probable  cause  ;  but  that, 
under  the  circumstances,  the  plaintift^'s  remedy  was  by  special 
action  on  the  case.* 


*  In  Van  Brunt  v.  Schenck,  supra,  Thompson,  Ch.  J.,  placed  the  decision  of 
the  Supreme  Court  entirely  upon  the  legal  effect  of  the  certificate  of  reasonable 
cause  of  seizure,  given  on  the  acquittal  of  the  vessel,  holding  that,  independently 
of  this  certificate,  the  case  would  have  fallen  within  the  rule  that  the  abuse  of 
an  authority  given  by  law  makes  the  abuser  a  trespasser  ab  initio.  The  act  of 
Congress  (of  March  2d,  1799),  declares  that,  where  there  is  a  certificate  of  rea- 
sonable cause  of  seizure,  the  person  who  made  the  seizure,  or  the  prosecutor, 
shall  not  be  liable  to  action,  suit,  or  judgment,  on  account  of  such  seizure.  This 
certificate  does  not  shield  the  person  making  the  seizure  from  responsibility  for 
damages  which  may  be  occasioned  by  any  subsequent  abuse  of  his  authority.  It 
only  goes  to  protect  him  from  an  action  on  account  of  the  seizure — that  is,  if 
there  was  reasonable  cause  for  the  seizure,  tlie  person  making  it  shall  not  for 
such  act  be  deemed  iu  any  manner  responsible.     But  to  make  the  defendant  a 


§  489.  LIABILITY    OF   OFFICER    IN    SEIZING   GOODS.  471 

§  489.  An  attaclimeDt  of  personal  property  may  be  justi- 
fied without  showing  regular  subsequent  proceedings.     But 

trespasser  ab  initio,  would  be  making  him  responsible  for  the  act  of  seizure  for 
which  the  statute  declares  he  shall  not  be  answerable.  This  construction  gives 
full  force  and  etfect  to  the  certificate  of  reasonable  cause,  and  still  makes  the 
seizing  officers  liable  for  all  injury  occasioned  by  an  abuse  of  their  authority. 
Any  other  construction  renders  the  certificate  a  nullity.  The  seizing  officer  is, 
by  the  certificate,  put  in  tlie  situation  of  a  person  who  is  guilty  of  an  abuse  of 
an  authority  in  fact,  who  does  not  thereby  become  a  trespasser  ab  initio,  but  is 
liable  to  make  satisfaction  to  the  owner  of  the  property  for  the  abuse  of  his 
authority. 

The  following  are  the  material  portions  of  the  opinion  of  Spencer,  J.,  in  the 
above  case:  "It  is  insisted  that,  the  schooner  being  in  the  custody  of  the  law, 
the  use  or  abuse  of  her  by  the  defendant,  though  with  the  license  of  the  officer 
who  took  her,  rendered  the  defendant  and  all  concerned  trespassers  ab  initio, 
and  that  therefore  the  plaintiff  can  maintain  trespass  against  the  defendant. 
This  point  is  not  defensible  unless  the  defendant  is  implicated  in  the  first  taking, 
and  that  he  is  not,  the  facts  plainly  show.  *  *  *  it  would  be  palpably  ab- 
surd to  say  that  a  man,  totally  unconcerned  with  the  original  caption  of  goods, 
shall,  for  an  after  act  to  those  goods,  be  deemed  to  have  originally  taken  them. 
Still,  however,  it  is  contended  that  VanBeuren,  havingnoright  to  use  the  vessel, 
could  impart  none;  and  the  plaintift's,  having  the  general  property,  possession 
followed  it,  and  that  both  uniting  they  could  maintain  trespass  against  the  de- 
fendant, and  more  especially,  as  the  defendant  knew  the  vessel  was  under  seizure 
when  the  defendant  took  the  vessel,  the  plaintifls  were  clearly  dispossessed  of 
her.  Nor  had  they  then  a  right  to  reduce  her  to  actual  possession ;  for  she  Jiad 
been  seized  under  the  authority  of  the  law,  and  was  then  in  the  custody  of  the 
law,  adversely  to  the  plaintiff's  claim  of  property.  Still,  however,  it  is  urged 
that  Van  Beuren  was  at  all  events  a  trespasser  ab  initio,  by  his  licensing  the  de- 
fendant to  use  the  vessel,  and  that  this  act  re-invested  the  plaintift's  with  their 
first  right  of  property,  and  also  the  right  to  reduce  the  vessel  to  their  immediate 
possession.  It  seems  to  have  been  forgotten  by  the  counsel  who  urged  this  ar- 
gument, that  Van  Beuren's  giving  leave  to  the  defendant  to  take  the  vessel,  is 
not  an  act  which  would  even  render  him  a  trespasser  ab  initio.  It  was  the  act  of 
taking  her  and  using  her  which  alone  could  produce  that  effect;  and  not  until 
after  the  commission  of  that  act,  would  Van  Beuren  have  violated  the  authority 
given  him  by  law  to  seize  and  hold  the  vessel.  The  act  of  taking  and  using  the 
vessel,  is  indivisible.  When  the  defendant  first  entered  on  it,  it  must  be  ad- 
mitted the  plaintiffs  had  neither  the  possession  nor  the  right  to  reduce  the  ves- 
sel to  their  possession,  and  therefore  at  that  time  ihey  had  no  right  to  bring 
trespass.  To  maintain  that  trespass  would  lie  against  the  defendant,  the  counsel 
must  be  driven  to  the  necessity  of  splitting  up  the  defendant's  act  and  making 
him  a  trespasser,  not  for  entering  on  board  the  vessel  and  casting  oflf  her  fasts, 
but  for  sailing  in  her.  This  mode, of  considering  and  treating  the  action  may 
well  be  pronounced  an  anomaly  in  the  law  of  trespass,  without  precedent  and 
without  authority.  Tlie  true  and  only  test  is  to  consider  whether,  when  the  first 
act  was  done  which  consists  of  a  series  of  acts,  the  defendant  was  guilty  of 
trespass  "toward  the  plaintift's.  If  he  was  not,  then  he  cannot  in  this  case  be  so 
afterward." 

Van  Ness,  .J.,  delivered  a  dissenting  opinion,  in  which  Piatt,  J.,  concurred, 
the  substance  of  wiiich,  omitting  the  cases  cited,  and  quotations  therefrom,  was 
as  follows:  *'  Whether  this  suit  can  be  maintained  strictly  on  the  principle  that 
the  defendant  is  a  trespasser  by  relation,  it  is  not  material  to  inquire,  because  I 
think  he  is  liable  in  this  form  of  action  on  another  ground.  It  has  long  been 
well  settled  that  actual  possession  is  not  necessary  to  enable  the  owner  to  main- 
tain trespass  or  trover  as  it  respects  personal  property.  The  plaintiffs  in  this 
case  were  the  undisputed  owners  of  the  schooner  until  she  was  unlawfully  seized 
by  Van  Beuren.     I  say  unlawfully,  because,  as  she  was  acquitted  in  the  District 


472      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  489. 

the  subsequent  unlawful  disposal  of  the  property  will  de- 
prive the  officer  and  attorney  of  justifying  the  original 
taking  under  valid  process,  and  cause  them  to  be  regarded 
as  standing   in   the   position  of  strangers.^  *     Although  an 


Court,  were  it  not  for  the  certificate  of  probable  cause,  Van  Beuren  might  liave 
been  prosecuted  as  a  trespasser  for  the  original  taking.  This  certificate,  how- 
ever, can  in  no  way  protect  either  Van  Beuren  or  the  defendant  against  an  ac- 
tion for  their  illegal  use  of  the  vessel  after  the  seizure.  That  Van  Beuren  became 
a  trespasser  from  that  moment,  ab  initio^  is  not  questioned.  The  cases  cited  on 
the  argument  are  decisive  on  that  point.  The  certificate  of  probable  cause  would 
afford  him  no  protection  against  an  action  of  trespass  founded  upon  the  abuse  of 
his  authority.  From  the  moment  therefore  Van  Beuren  lent  this  vessel  to  the 
defendant,  his  official  character  was  lost,  and  he  is  to  be  treated  like  any  other 
private  individual  who  wantonly  and  illegally  v/rests  from  another  his  property. 
The  vessel  ceased  to  be  in  the  custody  of  the  law  after  Van  Beuren  had  parted 
with  her  to  the  defendant,  for  a  purpose  utterly  repugnant  to  his  duty  as  a  \)\ih' 
lie  officer,  and  by  which  he  confessedly  became  as  much  a  trespasser  as  if  he  had 
acted  without  any  authority  or  license  from  the  beginning.  While  this  vessel  was 
in  the  employment  of  the  defendant,  he  held  her  by  wrong,  and  the  plaintifiis  had 
a  clear  and  incontestable  right  to  resume  the  possession  of  her,  if  they  were  dis- 
posed to  exert  it,  wherever  they  found  her.  This  right  results  as  a  direct  and 
necessary  consequence  of  that  principle  of  law  by  which  Van  Beuren  is  deemed 
to  be  a  trespasser  ab  initio.  He  stands  in  the  same  situation  as  if  he  had  acted 
without  any  authority.  Like  every  other  trespasser,  his  possession  was  tortious ; 
and  the  owner  might,  at  his  election,  either  have  aflSrmed  the  possession  and 
property  in  him,  by  bringing  an  action  of  trespass,  or  he  might  have  brought 
replevin  to  have  the  thing  restored  to  him  and  recover  his  damages  for  the  first 
taking.  A  moment's  consideration  will  show  that,  if  the  plaintiffs  were  en- 
titled to  the  possession  as  between  them  and  Van  Beuren,  they  are  equally  so  as 
between  them  and  the  defendant.  *  *  *  *  If  the  plaintiffs  could  have  taken 
her  from  Van  Beuren  after  he  became  a  trespasser,  does  it  not  follow  that  they 
had  the  same  power  after  she  came  into  the  hands  of  the  defendant,  in  conse- 
quence of  an  act  flagrantly  illegal  to  which  both  he  and  Van  Beuren  were 
parties  ?  It  seems  to  be  admitted  that  the  defendant  is  bound  in  some  form  of 
action  to  compensate  the  plaintiffs  for  the  use  of  the  vessel.  Does  not  this 
demonstrate  his  possession  of  her  to  have  been  tortious  and  illegal  ?  And  here 
it  is  material  to  observe  that  if  a  person  is  once  liable  as  a  trespasser  for  an  il- 
legal taking  of  the  goods  of  another,  he  shall  answer  for  their  full  value  unless 
they  are  restored  to  the  owner;  in  which  case,  the  restoration  may  be  given  in 
evidence  in  mitigation,  but  not  in  bar  of  the  suit.  I  can  see  no  reason,  therefore, 
why  the  defendant  as  well  as  Van  Beuren,  is  not  liable  in  this  form  of  action  for 
his  illegal  and  unjustifiable  use  and  emjiloyment  of  the  vessel  as  a  distinct  and 
independent  trespass." 

'  Eaton  V.  Cooper,  29  Vt.  444 ;  Stoughton  v.  Mott,  25  lb.  668;  Boss  v.  Phil- 
brick,  39  Maine,  29 ;  Everett  v.  Herrin,  48  lb.  537. 

*  In  Maine,  the  statute,  R.  S.  1841,  ch.  114,  §64,  providing  that  "when 
goods  are  sold  and  disposed  of  after  an  appraisal,  the  proceeds  thereof,  whilst 
remaining  in  the  hands  of  the  ofiicer,  shall  be  liable  to  be  further  attached  by 
him  as  the  property  of  the  original  defendant,  in  like  manner  as  the  goods  them- 
selves would  have  been  liable  if  they  had  remained  in  the  possession  of  the  ofli- 
cer,"  presupposes  a  sale  in  compliance  with  the  statute.  If  it  appear  that  the 
sale  was  illegal,  the  oflicer  will  be  deemed  a  trespasser  from  the  beginning 
fEverett  v.  Herrin,  supra). 

In  an  action  for  an  excessive  attachment,  the  plaintiff  must  allege  and  prove 
much  the  same  that  he  would  in  a  suit  for  a  malicious  prosecution — that  is,  want 


§  491.  LIABILITY    OF   OFFICER  IN    SEIZING  GOODS.  473 

officer  may  lawfully  take  possession  of  boxes  left  at  a  depot 
for  transportation,  and  open  them,  and  separate  what  lie 
chooses  to  attach,  yet  he  must  exercise  his  authority  in  a 
reasonable  manner.  If  he  remove  boxes  unnecessarily,  or 
take  therefrom  property  which  is  exempt  from  attachment, 
he  will  be  liable  as  a  trespasser,  and  the  owner  will  be 
entitled  to  recover  for  the  damage  sustained  by  the  removal 
of  the  boxes,  and  also  the  value  of  any  articles  actually  re- 
tained by  the  officer  which  are  protected  from  attachment  by 
law.^ 

§  490.  An  officer,  in  bidding  off  property,  cannot  law- 
fully act  as  the  agent  of  the  creditor,  for  the  reason  that  the 
officer  should  be  impartial,  and  that  an  agency  for  one  of 
the  parties  would  imply  an  interest  adverse  to  the  other. 
Neither  can  a  person,  in  seizing  personal  property  in  the 
possession  of  A.,  be  permitted  to  act  ostensibly  in  the  char- 
acter of  sheriff,  by  virtue  of  an  execution  against  A.  at  the 
suit  of  B.,  and,  after  thus  effecting  his  purpose,  throw  off  his 
official  character,  and  aver  that  he  took  the  property  as  be- 
longing to  C,  and  as  the  private  agent  of  the  real  owner. 
To  permit  this  would  be  to  expose  the  possession  by  the 
party  of  a  contested  chattel  to  be  changed  and  transferred 
to  his  antagonist,  by  the  interference  of  any  sheriff  or  con- 
stable, who,  by  a  prostitution  of  his  official  power,  and  in 
the  practice  of  a  falsehood,  might  choose  to  lend  himself  to 
the  execution  of  such  a  scheme.^ 

§  491.  Although  it  is  a  general  rule  that  a  mere  non- 
feasance will  not  make  an  officer  a  trespasser  ah  iniiio^^  yet, 

of  probable  cause  and  malice  express.  The  party,  ordinarily,  will  be  the  only  one 
liable  (Abbott  v.  Kimball,  19  Vt.  551,  per  Redfield,  J.) 

'  Peeler  v.  Stebbins,  26  Vt.  044. 

'Knight  V.  Herrin,  48  Maine,  533;  Payson  v.  Hall,  30  lb.  319;  Pierce  v. 
Benjamin,  14  Pick.  356. 

*  Waterbury  agst.  Lockwood,  4  Day,  257,  was  an  action  against  a  tax  col- 
lector for  seizing  and  selling  a  horse  and  other  property  under  a  warrant  for  the 
non-payment  of  taxes.  A  verdict  having  been  found  for  the  defendant  in  the 
court  below,  a  point  made,  on  a  motion  for  a  new  trial,  was  that  the  court  im- 
properly admitted  in  evidence  the  warrant  in  the  hands  of  the  defendant  and 
his  indorsement  thereon,  showing  that  be  took  the  horse,  &c.,  by  virtue  of  the 


474       TAKING  PERSONAL  PKOPEETY  BY  OFFICER.    §  491. 

in  some  cases,  au  officer  may,  Iby  mere  nonfeasance,  forfeit  the 
protection  of  the  process  under  Avhicli  he  acts,  and  become 

■warrant,  and  advertised  the  same  for  sale,  &c.  To  the  admission  of  this  evi- 
dence it  was  objected  that  it  aflbrded  no  justification,  because  the  history  of  the 
subsequent  proceedings  of  the  officer  therein  detailed  showed  such  irregularity 
of  conduct  and  neglect  of  duty,  attended  with  a  loss  of  the  property,  as  rendered 
him  still  liable  to  the  plaintiff's  demand  as  a  trespasser  ab  initio,  and,  of  course, 
could  not  avail  him  as  a  defense.  The  Supreme  Court  said:  "An  omission  or 
neglect  of  duty  is  not  sufficient.  The  action  of  trespass  cannot  be  supported 
where  no  trespass  has  been  committed;  yet,  in  some  cases,  an  act  in  itself  law- 
ful may,  in  consequence  of  another  act,  by  relation,  become  a  trespass ;  but,  in 
all  such  cases,  the  subsequent  act  must  be  an  act  of  trespass,  and  committed 
before  action  brought.  In  this  case  no  such  subsequent  act  of  trespass  appears. 
At  most,  the  conduct  of  the  defendant  is  a  neglect  of  that  care  and  diligence 
which  the  law  required  of  him ;  and,  though  such  neglect  may  make  him  liable 
in  a  proper  action,  it  cannot  make  him  liable  in  this.  There  is  nothing  on  the 
return  showing  either  an  abuse  of  the  power  given  by  law  to  the  defendant  as 
collector,  nor  any  actual  trespass  by  him  committed  on  the  property  taken, 
which  can,  by  relation,  make  bim  a  trespasser  from  the  beginning.  I  am, 
therefore,  cleai'ly  of  opinion  that  the  warrant  and  return  were  admissible  to 
show  that  the  taking  was  lawful;  and  that,  at  the  date  and  service  of  the 
plaintiff's  writ,  no  trespass  had  been  committed  by  the  defendant.  They 
furnish  prima  facie  evidence  of  these  facts,  and  a  justification  to  that  time,  and 
if  not  rebutted,  must  produce  a  verdict  in  favor  of  the  defendant." 

Walker  v.  Lovell,  8  Fost.  138,  was  an  action  of  trespass  against  a  deputy 
sheriff  for  attaching  and  selling  certain  personal  property  belonging  to  one 
Calvin  Walker,  on  a  writ  against  him  in  favor  of  Hall  &  Co.,  who  were  creditors 
of  said  Calvin  for  goods  sold  and  delivered.  A  portion  of  the  goods  sold  by 
Hall  &  Co.  were  spirituous  liquors,  the  sale  of  which  was  illegal.  The  defend- 
ant applied  the  proceeds  of  the  property  in  question  to  the  satisfaction  of  the 
judgment  obtained  by  Hall  &  Co.  against  said  Calvin.  The  amount  received  by 
the  defendant  from  the  sale  was  more  than  sufficient  to  satisfy  so  much  of  the 
debt  and  interest  thereon  as  accrued  from  the  other  articles  than  the  said  spirit- 
uous liquors,  and  all  the  costs  of  suit  and  fees  and  charges  of  the  officer.  It 
was  contended  on  the  part  of  the  plaintiif  that  inasmuch  as  it  appeared  that  the 
avails  of  the  goods  attached  and  sold  upon  the  writ  amounted  to  a  greater  sum 
than  the  amount  of  the  debt  justly  and  legally  due  to  Hall  &  Co.,  and  the  legal 
costs,  and  that  the  defendant  applied  the  entire  sum  of  the  avails  realized  from 
the  sale  upon  the  execution  issued  upon  their  judgment  against  said  Calvin,  the 
defendant  thereby  became  a  trespasser  ab  initio,  and  was  answerable  for  the 
entire  property  originally  attached.  It  was,  however,  held  that  the  action  could 
not  be  maintained.  The  court  said;  "  The  officer  was  undoubtedly  obliged  to 
apply  the  money  to  the  extent  of  the  sum  justly  due  and  the  costs  of  the  action. 
But  if  this  form  of  action  can  be  sustained,  on  the  ground  that  the  defendant  is 
a  trespasser  ab  initio,  he  is  answerable  as  for  a  wrong  in  attaching  the  property 
originally,  and  for  every  other  act  touching  it  that  was  injurious  to  the  plaintift'. 
But  we  are  of  opinion  that  the  defendant  is  under  no  such  liability  as  a  tres- 
passer. If  he  is  liable  to  the  plaintiff  at  all,  the  liaiulity  resting  on  him  is  only 
that  of  an  officer  who,  having  sold  the  property  of  a  judgment  debtor,  from 
which  a  larger  amount  has  been  realized  than  is  required  to  answer  the  just  and 
proper  purposes  of  the  sale,  is  responsible  for  the  excess  to  the  debtor.  The 
application  of  the  money  upon  the  execution  was,  at  most,  a  mere  exercise  of  an 
erroneous  judgment  of  the  officer,  in  reference  to  liis  duty  and  rights,  and  was 
wholly  unattended  with  anything  like  a  wrong  with  force.  It  was  no  more  than  a 
mere  non-feasance  as  to  this  plaintiff.  It  was  not  more  than  the  omission  to  pay 
over  to  the  plaintiff  the  surj^lus  money  remaining  in  his  hands,  after  discharging 
that  portion  of  the  execution  which  was  justly  and  legally  due.  There  was  no 
destruction  or  waste  of  the  property  or  the  money  by  this  act  of  the  defendant. 
Notwithstanding  the  application  of  the  money,  by  way  of  indorsement  on  the 


§  491.  LIABILITY    OF   OFFICER   IX    SEIZING  GOODS.  475 

liable  to  be  treated  as  a  trespasser,  althougli  his  conduct  was 
in  the  first  instance  lawful.  Thus,  it  has  been  held  that  if 
he  neglect  to  return  mesne  process,  he  shall  not  be  permitted 
to  use  it  as  a  justification  of  any  act  he  may  have  done  under 
it.  This  principle,  which  may  be  considered  as  an  exception 
to  the  general  rule,  was  adopted  in  England  in  very  early 
times,  the  ground  being  that  if  there  were  no  return  of  the 
process,  it  was  the  same  in  eifect  as  if  there  was  no  process.*  * 
But  in  order  to  render  an  officer  liable  as  a  trespasser  for  a 
mere  act  of  nonfeasance,  he  must  omit  to  do  something, 
without  which  he  is  precluded  from  showing  that  the  orig- 
inal act  of  takino"  was  lawful.^  Russell  v.  Hanscomb  ^  was  an 
action  for  taking  and  carrying  away  a  seine.  It  appeared  that 
the  defendant  was  a  fishwardeu,  and  that  he  seized  the  seine 
acting  in  that  capacity.  The  defendant  had  the  seine  ap- 
praised, without  notice  to  the  plaintiff,  and  without  process 
of  law  as  required  by  the  statute  ;  and  it  was  held  that  such 
neglect  made  him  a  trespasser  ab  initio^  and  liable  to  an 
action  by  the  owner  of  the'  net  for  its  value.  It  was  aijal- 
ogous  to  the   case  of  a  sheriff  attaching  the  property  on 

execution,  in  point  of  law,  it  is  still  in  the  hands  of  the  defendant  for  the 
plaintiflf's  use  "  (citing  Gates  v.  Gates,  15  Mass.  310 ;  Abbott  v.  Kimball,  19  Vt. 
551). 

*  Kowland  v.  Veale,  Cowp.  18;  Freeman  v.  Blewitt,  1  Salk.  409;  Cheasley  v. 
Barnes,  10  East,  73;  Jordan  v.  Gallup,  16  Conn.  543;  Williams  v.  Ives,  25  lb. 
568;  Parker  v  Pattee,  4  N.  Hamp..  530;  Barrett  v.  White,  3  N.  Hamp.  210; 
ante,  %  353.  CVUX<U:c.^^4-^  /^.  (^clM-UC  /4.pi^CLy.  /-^/ 

''Williams  v.  Ives,  snpra  ;  Stoughton  v.  Mott,  25  Vt.  668;  Stone  v.  Knapp, 
29  lb.  501 ;  Gardner  v.  Campljell,  15  .Johns.  401  ;  Ferrin  v.  Symonds,  UN.  H.  363 ; 
Bailey  v.  Hall,  16  Maine,  408. 

'  15  Gray,  166. 

=^  "A  rule  that  a  sheriif  shall  forfeit  the  protection  of  process  by  not  return- 
ing it  can  rarely  have  any  practical  application  in  our  system  of  jurisprudence  " 
(Richardson,  C.  J.,  in  Parker  v.  Pattee,  supra). 

We  have  met  with  no  case  in  which  it  has  ever  been  held  that  an  officer  may 
become  a  trespasser  ab  initio  merely  by  an  omission  or  mistake  in  his  return. 
When  various  articles  are  attached,  the  officer  may  inadvertently  omit  to  men- 
tion a  particular  article,  or  may,  by  mistake,  give  a  wrong  name  to  an  article. 
Some  articles  may  be  released  by  the  creditor  at  the  request  of  the  debtor,  and 
be  on  this  account  omitted  in  the  return.  There  is  no  reason  why,  in  any  of 
these  cases,  the  officer  should  be  treated  as  a  trespasser.  If  he  unlawfully  con- 
vert the  goods  to  his  own  use,  or  suffer  them  to  be  lost,  wasted,  or  injured,  by 
his  negligence,  he  makes  himself  liable  to  the  extent  of  the  injury.  But  it  seems 
not  to  have  been  decided  that  an  officer  is  liable  in  any  shape  for  a  mere  defect 
in  his  return. 


476      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  492. 

mesne  process,  or  seizing  it  on  execution,  and  not  returning 
liis  process.  And  where  an  officer,  having  lawfully  seized 
goods,  neglected  to  procure  a  warrant  within  the  time  re- 
quired by  the  statute,  it  was  held  that  the  detention  of  the 
c:oods  after  that  time  beinsr  wrono;:ful,  the  officer  was  liable.-' 
The  neglect  of  an  officer  to  pay  over  money  in  his  hands  to 
one  entitled  to  it,  on  demand,  is  not  only  an  act  of  non-- 
feasance,  but  also  of  misfeasance,  for  w^hich  the  officer  is 
liable  as  a  trespasser.^  But  a  statute  which  makes  it  the 
duty  of  an  officer  who  has  an  execution,  to  call  at  the  debt- 
or's dwelling-house  for  payment  before  levy,  is  merely 
directory,  and  the  neglect  to  do  so  does  not  render  the  levy 
a  trespass.^  ''* 

§  492.  According  to  the  modern  English  cases,  to  impli- 
cate one  as  a  trespasser  ah  initio^  he  mu^t  do  or  consent 
io  some  act  which  goes  to  show  that  the  original  taking  was 


'  Stoughton  V.  Mott,  13  Vt.  175;  Tubbs  v.  Tukey,  -3  Cush.  438. 

"  Norton  v.  Nye,  56  Maine,  211. 

'  Dow  V.  Smith,  6  Vt.  519;  and  see  Eastman  v.  Curtis,  4  lb.  616. 

*  In  Dow  V.  Smith,  si/pra,  the  court  said :  "  The  plaintiff  insists  that  the  per- 
formance of  this  is  a  condition  jorecedent  to  the  officer's  power  to  levy,  and  that 
without  it  his  levy  is  a  trespass.  Such  a  principle  is  incapable  of  practical  adop- 
tion. If  he  cannot  take  the  property,  though  he  finds  it.  until  he  has  first  been 
to  the  debtor's  abode,  it  is  obvious  that  the  jjroperty  may  be  then  entirely  beyond 
his  bailiwick.  Cannot  property  be  charged  in  execution  which  the  office:  holds 
on  attachment  until  the  debtor  is  first  visited  ?  May  an  officer,  holding  an  at- 
tachment, take  property,  when  one  having  final  process  cannot  ?  Is  it  to  be 
endured  that  an  officer  must  see  a  debtor  in  execution  escape  from  the  county 
because  the  officer  has  not  been  to  the  debtor's  house  with  his  execution  ?  For 
it  is  as  necessary  in  the  latter  as  in  the  former  case.  But  perhaps  it  may  be 
said  that  the  officer  might,  in  his  return,  state  an  excuse  for  not  going  to  the 
debtor's  abode.  This  would  compel  the  officer  to  judge  of  the  excuse  at  the 
peril  of  being  held  a  trespasser  if  the  court  should  not  confirm  his  judgment,  or 
of  never  venturing  an  excuse,  and  hazard  being  answerable  to  the  creditor. 
The  only  practicable  course  is  to  treat  the  officer's  proceedings  as  good ;  and  if 
his  disregard  of  this  directory  statute  is  without  excuse,  malicious,  and  produc- 
tive of  injury  to  the  debtor,  let  redress  be  had  by  an  action  on  the  case  therefor 
against  him.  Such  has  been  the  practical  construction  of  this  statute  ever  since 
its  adoption.  If  this  levy  is  void  and  a  trespass,  so  must  have  been  a  levy  on 
land." 

The  refusal  of  an  officer  to  take  bail  on  me»ne  process  will  not  render  him  a 
trespasser,  it  being  a  nonfeasance,  not  a  malfeasance  (Churchill  v.  Churchill,  12 
Vt.  661). 

When  the  nonfeasance  is  permitted  or  suffered  by  a  deputy  sheriff,  the 
action  should  be  against  the  sheriff  and  not  the  deputy,  and  the  creditor  is  not 
liable  for  it  unless  done  by  his  command  or  assent  (Hale  v.  Huntley,  21  Vt.  147. 
referring  to  Abbott  v.  Kimball,  19  Vt.  551). 


§  492.  LIABILITY    OF    OFFICER  IN    SEIZING  GOODS.  477 

witli  the  purpose  of  putting  the  thing  to  an  illegal  use. 
These  decisions  rest  upon  the  avowed  ground  of  narrowing 
to  the  utmost  the  doctrine  of  making  officers  and  others  tres- 
passers by  means  of  some  technical  irregularity  in  the  detail 
of  their  duties.^  In  a  case  in  Illinois,  it  was  said  that  there 
must  have  been  "  such  a  wrongful  act  as  leads  to  the  belief 
that  the  legal  authority  was  only  resorted  to  in  order  to  en- 
able the  officer  to  obtain  the  means  of  committing  the 
wrong."  ^  *  Where  a  deputy  sheriff,  acting  in  his  official 
capacity,  entered  upon  the  close  of  the  plaintiff  and  took  and 
carried  away  therefrom  a  wagon  and  two  sleighs,  the  prop- 
erty of  the  plaintiff,  and  left  them  in  a  safe  and  proper  place, 
and  afterwards  the  wagon  and  one  of  the  sleighs  were  ma- 
liciously destroyed  by  some  person  unknown,  it  was  held 
that  the  officer  did  not  thereby  become  a  trespasser  ah  initio\ 
nor  liable  as  such,  in  trespass  for  the  original  entry.  As  he 
was  not  guilty  either  of  negligence,  or  of  any  forcible  and 
positive  act  of  trespass  in  reference  to  the  property  attached, 
he  could  not  be  presumed  to  have  acted,  in  entering  upon 

'  See  Hyde  v.  Cooper,  26  Vt.  553 ;  Bean  v.  Hubbard,  4  Cush:  85. 

'  Page  V.  De  Puy,  40  111.  500. 

*  Substantially  the  same  ground  was  takeu  by  the  Supreme  Court  of  Vermont, 
in  Stoughton  v.  Mott,  25  Vt.  R.  668,  which  was  au  action  of  trespass  to  recover 
the  value  of  the  plaintiff's  sloop.  It  appeared  that  the  vessel  had  been  seized  by 
a  United  States  officer  for  carrying  contraband  freight,  and  that  tlie  defendant, 
a  U.  S.  deputy  collector,  the  gloop  being  in  cliarge  of  U.  S.  soldiers  under  the 
officer,  assisted  in  unloading  the  sloop,  and  that  afterward  the  vessel,  while  in 
charge  of  the  soldiers,  was  wrecked  in  a  gale  on  Lake  Champlain.  It  was  held 
that  the  defendant's  agency  in  the  transaction  was  insufficient  to  make  him  a 
trespasser.  Redfield,  Ch.  J.,  in  delivering  the  opinion  of  the  court,  said:  "I 
have  found  it  impossible  to  discover  the  least  scintilla  of  evidence  tending  in  the 
remotest  degree  to  implicate  the  defendant  in  any  positive  wrongful  act.  If  it 
should  be  assumed  that  he,  having  participated  in  the  seizure,  was  bound  to  see 
to  it  that  the  vessel  or  goods  were  regularly  proceeded  with  under  the  act  of 
Congress,  and  properly  taken  care  of  in  the  mean  time;  yet  the  non-performance 
of  both  these  duties,  if  it  be  assumed  that  the  Jaw  casts  them  upon  the  defend- 
ant, is  but  a  mere  nonfeasance,  and  not  sufficient,  according  to  all  the  cases,  to 
make  the  defendant  a  trespasser  from  the  beginning.  The  plaintiff's  only 
remedy  in  such  a  case,  for  the  destruction  of  his  boat  through  want  of  ordinary 
care,  would  be,  perhaps,  a  special  action  of  trespass  on  the  case,  but  clearly  not 
trespass." 

To  make  an  officer  a  trespasser  db  initio,  the  wrongful  act  must  be  done  to 
the  property  itself,  not  to  the  fund  realized  from  a  legal  sale  (Wilson  v.  Seavey, 
38  Vt.  331)'. 

Trespass  cannot  be  maintained  against  a  constable  for  merely  taking  too 
much  property  under  an  execution,  the  remedy  being  trespass  on  the  case  (Jarratt 
V.  Gwathmey,  5  Blackf.  337). 


478  TAKING    PERSONAL    PROPERTY   BY   OFFICER.  §  493. 

the  close  of  the  plaintiff,  without  authority,  and  in  his  own 
wrong.^ 

S  493.  The  s^eneral  rule  is,  that  he  who  at  first  acts  with 
propriety  under  an  authority  or  license  given  by  law,  and 
afterward  abuses  it,  shall  be  considered  a  trespasser  from  the 
beo-innino-.  The  reason  of  the  rule  seems  to  be,  that  it  would 
be  contrary  to  sound  public  policy  to  permit  a  man  to  justify 
himself  under  a  license  or  authority  allowed  him  by  law 
after  he  had  abused  the  license  or  authority  thus  allowed 
him,  and  used  it  for  improper  purposes.  The  presumption 
of  law  is,  that  he  who  thus  abuses  such  an  authority  assumed 
the  exercise  of  it  in  the  first  place  for  the  purpose  of  abusing 
it.  The  abuse  is,  therefore,  very  justly  held  to  be  a  forfeiture 
of  all  the  protection  which  the  law  would  otherwise  give.'^ 
The  Six  Carpenters'  Case^  recognizes  a  distinction  between 
the  actual  and  positive  abuse  of  a  thing  taken  originally  by 
authority  of  law  and  a  mere  nonfeasance,  such  as  a  refusal  to 
deliver  an  article  distrained."      It  has  never  been  doubted 

'  Ferrin  v.  Symonds,  11  N.  Hamp.  3G3. 

'  Hopkins  v.  Hopkins,  10  Johns.  369;  Gardner  v.  Campbell,  15  lb.  401. 

'  8  Co.  14G. 

*  Different  reasons  have  been  given  for  the  distinction  between  the  conse- 
quences of  an  abuse  of  an  authority  in  law  and  the  abuse  of  an  authority  in  fact. 
What  is  offered  in  the  Six  Carpenters'  Case  as  a  reason  for  the  distinction  is 
hardly  more  than  a  statement  that  such  a  distinction  exists.  In  Allen  v.  Crofoot, 
5  Wend.  506,  Savage,  C.  J.,  intimates  that  it  is  a  distinction  without  a  difference 
of  principle.  Hammond,  (Ni.  Pr.  59)  observes  that  the  reason  given  by  Coke 
"cannot  be  the  true  reason  of  the  rule,  because  if  the  nature  of  the  subsequent 
act  of  trespass  was  indicative  of  a  previous  evil  intent,  it  must  be  so  in  the  in- 
stance where  it  has  been  perpetrated  in  executing  an  authority  in  law,  but  like- 
wise where  it  has  been  committed  in  fulfilling  an  authority  in  fact.  The  ground, 
therefore,  upon  which  one  who  has  been  guilty  of  an  abuse  is  made  a  trespasser 
(lb  initio,  is  that  of  policy,  and  the  rule  was  instituted  to  prevent  an  authority  in 
law  being  turned  into  an  instrument  of  injustice  and  oppression."  But  where 
the  authority  is  derived  from  aa  individual,  and  the  authority  is  abused,  the 
party  becomes  a  trespasser  for  the  excess  only ;  "  for  the  necessity  and  policy 
which  in  the  instance  where  an  authority  in  law  has  been  abused,  operate  to  in- 
validate the  proceedings  from  the  commencement,  no  longer  exists  "  (Ham- 
mond's Nisi  Prius,  66).  The  foregoing  distinction  seems  not  to  have  been 
extended  to  criminal  cases  (The  State  v.  Moore,  13  N.  Hamjj.  42). 

The  reason  of  this  rule,  and  why  it  does  not  apply  equally  to  an  abuse  of  an 
authority  in  fact,  does  not  seem  very  satisfactorily  explained  in  the  books.  It  is 
sometimes  said  that  the  law  intends,  from  the  subsequent  tortious  act,  that  there 
was  from  the  beginning  a  design  of  being  guilty  of  an  abuse  of  the  authority. 
At  other  times,  it  is  made  to  rest  upon  the  general  reasonableness  of  the  rule 
that,  where  the  law  has  given  an  authority  it  should,  in  order  to  secure  such  per- 


§  493.  LIABILITY   OF  OFFICER  IN    SEIZING  GOODS.  479 

that  if  an  officer  have  legal  process  to  execute,  and  volun- 
tarily abuse  and  pervert  it  to  other  purposes,  lie  is  not  only 
a  trespasser  in  that  act,  but  becomes  one  ab  initio^  and  is 
thus  liable  for  all  that  he  has  done  under  the  process.  This 
rule  of  the  common  law  applies  to  all  subordinate  executive 
officers,  and  serves  to  confine  them  within  the  limits  of  their 
legal  duties.^  Where  a  commissioner  of  streets,  being  legally 
authorized  to  remove  a  shop  from  the  street  as  an  obstruc- 
tion, sold  fragments  of  it,  it  was  held  that  he  was  thereby 
guilty  of  such  an  abuse  of  his  authority  as  rendered  him  a 
trespasser  ah  iiiitio^  and  answerable  for  the  value  of  the 
building.^  The  tanning  of  raw  hides  seized  as  a  distress,  has 
been  held  to  make  him  who  seized  them  a  trespasser,  because 
they  are  so  changed  by  the  operation  as  not  to  be  known  by 
the  owner.  So,  likewise,  where  a  searcher  seized  certain 
stuffs  and  unpacked  them,  and  placed  them  in  the  dirt,  by 
which  they  were  injured,  it  was  held,  that   although   the 


sons  as  are  the  objects  of  the  authority  from  the  abuse  thereof,  make  everything 
done  void  when  it  is  abused,  and  leave  the  abuser  in  the  same  situation  as  if  he 
had  done  everything  without  any  authority.  But  whatever  may  be  tlie  reason 
of  the  rule,  it  is  founded,  in  some  measure,  in  fiction. 

Where  in  action  of  replevin  the  defendant  justifies  the  taking  as  a  distress, 
the  plaintiff  may  reply  that  the  defendant  so  abused  the  distress  as  to  render 
himself  a  trespasser  from  the  beginning.  In  Hopkins  v.  Hopkins,  10  Johns. 
369,  Kent,  Ch.  J.,  delivering  the  opinion  of  the  court,  said:  "There  is  no 
reason  why  the  general  jirinciple  should  not  apply  to  this  action  as  well  as  to 
trespass,  that  wliere  a  person  acts  under  an  authority  or  license  given  by  law,  and 
abuses  it,  he  shall  be  deemed  a  trespasser  al  initio.  The  party  recovers  his  dam- 
ages in  this  action  as  well  as  in  trespass,  and  the  law  would  be  inconsistent  in 
liolding  in  the  action  of  replevin  that  the  original  taking  was  valid,  notwith- 
standing any  subsequent  abuse,  and  awarding  a  return,  and  yet  in  the  action  of 
trespass  to  punish  the  party  for  the  first  taking.  There  is  no  color  for  such  a 
distinction  in  the  Six  Carpenters'  Case,  8  Co.  146,  where  all  the  law  on  the  sub- 
ject is  fully  discussed  and  clearly  expounded.  It  is  there  declared,  that  '  i&the 
owner,  who  distraineth  for  damage  feasant,  doth  work  or  kill  the  distress,  the 
law  will  adjudge  that  he  entered  for  that  purpose,  and  because  the  act  which 
doth  demonstrate  the  same  is  a  trespass,  he  shall  be  a  trespasser  ah  initio.''  But 
the  court  proceed  to  state  and  illustrate  the  cases  in  which  the  party  is  not  to  be 
adjudged  a  trespasser  ah  initio  ;  as,  if  a  man  take  cattle  damage  feasant,  and  the 
other  tender  sufficient  amends,  and  he  refuses  to  deliver  them  back,  if  he  sue  a 
replevin  he  shall  recover  damages  only  for  che  detention,  and  not  for  the  taking, 
for  that  icas  latqful.'^  The  necessary  inference  from  the  language  of  the  case  is, 
that  in  the  first  instance  put  the  person  taking  and  abusing  the  beasts  would,  on 
a  replevin,  be  deemed  a  trespasser  from  the  beginning. 

'Bacon's  Abr.   Trespass,   B;    Ross  v.  Philbrick,  39  Maine,  29;  Allen  v.  Cro- 
foot,  5  Wend.  506 ;  Malcom  v.  Spoor,  12  Mete.  279. 

^  ]Mussey  v.  Cummings,  34  Maine,  74. 


480  TAKING    PERSONAL    PROPERTY   BY  OFFICER.  §  494. 

search  was  lawful,  yet  that  the  placiDg  of  the  goods  in  the 
dirt  was  such  an  abuse  of  his  authority  as  to  render  him  a 
trespasser  ah  initio}  An  error  or  mistake,  however,  such  as 
a  person  of  ordinary  care  and  common  intelligence  might 
commit,  will  not  amount  to  an  abuse.  There  must  have 
been  such  a  complete  departure  from  the  line  of  duty,  or 
such  an  improper  and  illegal  exercise  of  the  authority  to  the 
prejudice  of  another — such  an  active  and  wilful  wrong  per- 
petrated— as  will  warrant  the  conclusion  that  its  perpetrator 
intended  from  the  first  to  do  wrong,  and  to  use  his  legal 
authority  as  a  cover  for  his  illegal  conduct.^  The  taking  an 
excessive  distress,  and  the  removal  of  goods  taken  by  warrant 
of  distress  to  a  great  distance,  though  wrongs,  are  not  such 
acts  as  will  warrant  the  conclusion  that  the  persons  commit- 
ing  them  intended  from  the  beginning  to  abuse  their 
authority,  and,  therefore,  do  not  make  the  persons  committing 
them  trespassers  ah  initio?  But  it  is  said  that  when  six 
ounces  of  gold  and  one  hundred  ounces  of  silver  were  taken 
for  six  shillings  and  eight  pence,  it  was  holden  to  be  an  ex- 
cessive distress  for  which  the  party  was  liable  in  trespass ; 
because  that  appeared  upon  the  face  of  it,  to  be  excessive, 
and  because  it  was  a  distress  of  gold  and  silver,  which  are  of 
certain  known  value,  and  the  measure  of  the  value  of  other 
things.*  ^ 

§  494.  When  a  person  who  has  authority  by  law  to  enter 
a  house  to  serve  legal  process,  places  there  an  unfit  and  un- 
suitable person  to  keep  possession  of  goods  which  he  has 
attached  until  be  can  remove  them,  against  the  remonstrance 
of  the  occupant  of  the  house,  it  is  such  an  abuse  of  his  au- 

'  Rolle's  Abr.  561.  '  Taylor  v.  Jones,  43  N.  Hamp.  25. 

^  Purriugton  v.  Loring,  7  Mass.  388. 

'  1  Burr.  590 ;  Barrett  v.  White,  3  N.  Hamp.  210, 

*  In  Purrington  v.  Loring  supra.,  ■wliich  was  an  action  of  trespass  for  taking 
and  carrying  away  the  goods  of  the  plaintiff,  the  defendant  pleaded  that  as  a 
deputy  sheriff  he,  on  warrants  of  distress  against  the  plaintiff,  duly  issued  and 
delivered  to  him  to  execute,  took,  carried  away  and  sold,  to  satisfy  those  war- 
rants, the  chattels  mentioned  in  the  declaration.  It  was  admitted  that  the  goods 
were  removed  to,  and  advertised  and  sold  in  au  adjoining  town;  but  it  was  held 
that  the  officer  by  so  doing  did  not  become  a  trespasser  db  initio. 


§  494.  LLVBILITY    OF   OFFICER  IN   SEIZING   GOODS.  481 

thority  as  renders  him  liable  as  a  trespasser  ah  initio.  In 
Malcom  v.  Spoor/  it  appeared  that  the  defendant,  who  was  a 
constable,  entered  the  plaintiff's  house  and  attached  her  fur- 
niture, and  that  he  took  with  him  into  the  house,  and  left  in 
charge  of  the  furniture,  a  man  who  was  drunk,  although  the 
plaintiff  objected  to  the  man's  remaining  in  the  house  on 
account  of  his  intoxication.  At  the  trial  in  the  Court  of 
Common  Pleas,  the  judge  charged  the  jury  that  if  the  de- 
fendant, under  color  of  his  process,  took  with  him  a  grossly 
intoxicated  and  clearly  unfit  person  into  the  plaintiff's  house, 
and  left  him  therein  as  keeper,  it  was  such  an  abuse  of  his 
authority  as  made  him  a  trespasser  ab  initio.,  and  that  the 
defendant  was  answerable  for  all  the  acts  of  such  keeper, 
done  in  pursuance  of  previous  concert  between  them,  or  by 
direction  of  the  defendant.  A  verdict  having  been  found  for 
the  plaintiff  pursuant  to  the  foregoing  instructions,  the  Su- 
preme Court  refused  to  disturb  it.  Where  an  officer  places 
personal  property  in  charge  of  a  third  person  to  keej),  and 
such  person  uses  it,  the  officer  has  been  deemed  a  trespasser 
ab  initio .1  although  done  without  his  knowledge,  the  use  of 
the  property  being  regarded  as  really  an  abuse  of  the  pro- 
cess as  to  destroy  or  sell  it  without  authority.^  But  in  New 
Hampshire  it  has  been  held  that  the  conversion  of  goods  by 
a  person  with  whom  an  officer  has  deposited  them  for  safe 
keeping,  without  the  knowledge  or  assent  of  the  officer,  does 
not  make  him  a  joint  trespasser  with  such  person.^  * 


'  12  Mete.  279. 

'  Briggs  V.  Gleason,  29  Vt.  78;  Morris  v.  Hyde,  8  lb.  352. 

'  Barron  v.  Cobleigh,  11  N.  Hamp.  557. 

*  In  Briggs  v.  Gleason,  supra,  it  appeared  that  the  defendant,  a  deputy- 
sheriff,  attached  a  mare  belonging  to  the  plaintiff,  put  her  in  charge  of  a  farmer 
named  Freeman,  who  worked  her  cruelly.  The  court  said :  "•  The  lirst  inquiry 
is,  whether  the  use  of  the  ])roperty,  under  the  circumstances,  made  the  officer  a 
trespasser  ah  iuitlo.  If  the  use  had  been  by  tlie  defendant  liimself,  or  by  his 
express  consent,  or  with  his  knowledge,  and  he  made  no  effort  to  hinder  it,  it 
has  been  held  by  this  court  in  Lamb  v.  Day  et  al.,  8  Vt.  407,  that  he  thereljy  be- 
came a  trespasser  ab  initio.  The  only  difference  between  that  case  and  this  is, 
that  here  tlie  use  was  by  the  bailee  of  the  defendant,  and  it  does  not  appear 
whether  with  the  defehdant's  knowledge  or  not.  But  we  think  this  use  must  l)e 
regarded  as  the  act  of  the  defendant.  The  bailment  is  not  official  in  any  such 
sense  as  to  excuse  the  defendant  for  the  acts  of  the  bailee.     If  the  bailee  destroy 

Vol.  I.— 31 


482  TAKING   PERSONAL  PROPERTY    BY  OFFICER.  §  495. 

§  495.  A  person  against  whose  property  and  rights  no 
excess  or  abuse  lias  been  committed,  cannot  rely  on  a  wrong 
or  injury  done  to  another  as  evidence  of  an  original  unlawful 
act  toward  him,  and  thus  convert  an  officer  exercising  a  law- 
ful authority  into  a  trespasser  ah  initio.  Where,  therefore, 
an  officer  after  selling  more  than  enough  of  the  personal 
property  of  a  judgment  debtor  to  satisfy  the  execution,  pro- 
ceeded to  sell  a  mow  of  hay,  it  was  held  that  he  did  not 
thereby  become  liable  as  a  trespasser  ah  initio  to  one  who 
held  an  unrecorded  mortgage  of  the  property.^  * 

.the  property,  it  is  well  settled  in  practice,  and  by  the  decisions  of  the  courts, 
that  the  officer  is  liable.  And  we  do  not  see  why  the  same  rule  does  not  apply 
to  any  abuse  of  the  property.  Indeed,  it  has  been  held  that,  if  the  bailee  of 
property,  under  such  circumstances,  suffer  the  property  to  go  back  into  the 
hands  of  the  debtor,  the  officer's  lien  is  lost,  thus  making  the  act  of  such  bailee 
that  of  the  officer.  We  do  not  intend  to  decide  that  every  use  of  property  at- 
tached for  the  shortest  time,  and  which  may  be,  through  inadvertence,  or  only 
for  the  health  of  the  animal,  will  make  the  officer  a  trespasser.  But  any  such 
use  as  is  calculated  to  lessen  the  value  and  expose  the  life  and  health  of  the  ani- 
mal, and  which  is  done  understandingly  and  perseveringly,  must  be  regarded  as 
an  intentional  misuse  of  the  process,  and  is  such  an  abuse  as  shows  fairly  enough 
that  the  process  is  perverted  to  the  accomplishment  of  other  purposes  than  the 
legitimate  one  which  the  process  was  intended  to  justify.  To  hold  that  the  pro- 
cess is  any  protection  in  such  case  is  an  evasion  and  abuse  of  the  law.  The  whole 
proceeding  under  the  process  is  justly  regarded  as  mere  finesse,  and  the  shield  of 
its  protection  is  wholly  withdrawu,  and  the  officer  stands  a  naked  trespasser 
from  the  beginning,  the  same  precisely  as  if  he  had  never  had  any  process." 
Where  an  officer  places  personal  property  which  he  has  attached  in  charge  of  a 
third  person  to  keep,  the  officer  is  liable  for  the  value  of  the  property,  and  if 
compelled  to  pay  the  whole  amount  of  the  debt  he  will  be  subrogated  to  the 
right  of  the  creditor,  and  may  enforce  the  execution  against  the  debtor  (Brigga 
V.  Gleason,  supra). 

'  Wolcott  V.  Eoot,  2  Allen,  194. 

*  "The  duty  of  the  sheriff  to  inquire  and  determine  whether  the  defendant 
is  an  absolute  owner,  or  has  only  a  special  and  limited  interest,  is  exactly  the 
same  in  the  case  of  a  mortgage  as  in  that  of  a  pledge  or  of  a  partnership,  A 
pledge  may  be  a  cover  for  fraud  as  well  as  a  mortgage;  the  asserted  partnership 
may  not  exist,  or  may  not  embrace  the  goods  in  question.  The  sheriff,  how- 
ever, in  proclaiming  the  fact  that  a  title  is  asserted  by  a  third  person,  to  which 
that  of  the  defendant  in  the  execution  is  subordinate,  and  in  selling  the  property 
subject  to  this  claim,  determines  nothing  as  to  its  validity.  He  merely  pursues 
the  course  which  the  law  judges  to  be  necessary  for  the  protection  of  riglits  and 
interests  which  might  otherwise  be  sacrificed  or  endangered.  He  cannot  say 
that  a  mortgage  duly  filed  is  a  valid  security,  but  he  cannot  treat  it  as  not  exist- 
ing. He  has  no  right  to  say  that  it  is  invalid  by  selling  the  property  which  it 
embraces  as  belonging  absolutely  to  the  judgment  debtor;  it  is  at  his  own  peril 
that  he  thus  conducts  the  sale.  As  embracing  a  denial  of  the  title  of  the  mort- 
gagee, it  is  an  invasion  of  his  rights  for  which  the  law  gives  him  an  appropriate 
remedy.  When  the  mortgage  is  valid,  the  sherift'  is  as  much  a  trespasser 
and  wrong-doer  as  if  the  judgment  debtor  had  no  interest  in  the  property" 
(Hull  V.  Camley.  3  Duer,  99,  Duer,  J.). 

Where  a  demand  by  a  mortg<agee  of  goods  upon  an  officer  who  had  seized 


i 


§  496.  LIABILITY  OF   OFFICER  IN   SEIZING   GOODS.  483 

§  496.  In  certain  exceptional  cases,  an  officer  is  permitted 
to  seize  personal  proj^erty  without  process.  Public  officers 
are  not,  however,  at  liberty  to  disregard  the  rights  of  an  in- 
dividual in  reference  to  his  property,  unless  there  is  a  clear 
and  urgent  reason  therefor  to  subserve  an  important  and 
pressing  public  necessity.  Any  other  rule  would  fail  to  fur- 
nish adequate  protection  to  the  citizen  against  the  encroach- 
ments of  superior  power./  Sailly  v.  Smith  ^  was  an  action  of 
trespass  against  the  collector  of  customs  for  seizing  certain  dry 
goods  belonging  to  the  plaintiff,  under  the  authority  of  the  8th 
section  of  the  act  of  Congress  "  to  interdict  commercial  inter- 
course between  the  United  States,  Great  Britain  and  France, 
and  their  dependencies,  and  for  other  purposes."  The  goods 
were  taken  by  the  collector,  without  a  warrant,  out  of  a 
sleigh  standing  under  an  open  shed ;  and  it  was  held  that  he 
had  a  right  to  make  the  seizure  and  to  retain  the  goods  in 
his  custody  until  it  could  be  ascertained  by  due  course  of 
law  whether  or  not  they  were  forfeited.  Where  a  custom 
house  officer  took  by  force  from  under  the  arm  of  a  passenger 
landing  from  a  vessel  a  portfolio  containing  school  drawings, 
without  making  any  previous  demand,  it  was  held  that,  as 
drawings  which  had  not  paid  duty  were  subject  to  forfeiture, 
under  the  statute,^  the  officer  was  not  liable  in  trespass  ;  but 
(per  Lord  Denman,  C.  J.)  that  he  would  be  liable  in  such 
action  to  the  person,  unless  some  attempt  were  made  to  con- 
ceal the  goods.*  In  Allen  v.  Colby ,^  which  was  an  action  of 
trespass  for  taking  the  plaintiff's  wearing  apparel,  it  ap- 
peared that  the  plaintiff',  having  fled  from  the  State  in  order 

them  on  execution  for  the  debt  of  the  mortgagor  was  not  made  until  ten  months 
after  the  sale,  and  no  good  cause  shown  for  not  making  it  sooner,  it  was  held  not 
within  a  reasonable  time  so  as  to  give  the  mortgagee  a  right  of  action  against 
the  officer  (Brackett  v.  Bullard,  13  Mete.  308).  What  is  a  reasonable  time,  on  a 
given  state  of  facts,  where  there  is  no  positive  law  fixing  the  time,  is  a  question 
of  law  (Brackett  v.  Bullard,  Supra;  citing  Smith  v.  Newburyport  Marine 
Ins.  Co.,  4  Mass.  670;  Johnson  v.  Sumner,  1  Mete.  172;  Ilousatonic  &  Lee  Banks 
V.  Martin,  lb.  294;  Legate  v.  Potter,  lb.  325). 

'  Hicks  v.  Dorn,  54  Barb.  172;  s.  c,  1  Lansing,  81. 

"^  11  Johns.  500.  =  3  and  4  Wm.  4,  c.  56. 

*  Do  Gondouin  v.  Lewis,  2  P.  «&  D.  283;  10  Ad.  &  E.  117;  3  Jur.  1168. 

"  47  N.  Hamp.  544. 


484      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  497. 

to  avoid  the  military  draft  which  had  been  called  for  by  the 
President  of  the  United  States,  the  defendants,  who  were 
civil  officers,  took  and  detained  his  clothes  for  the  purpose  of 
securing  his  arrest.  A  verdict  having  been  found  for  the 
defendants  in  the  court  below,  the  Supreme  Court  declined 
to  disturb  it.*  But  officers  wlio  are  emj^owered  to  make  ar- 
rests should  not  be  encouraged  in  meddling  unnecessarily 
with  the  property  of  tbe  accused.  A  loose  rule  in  this  re- 
spect would  be  likely  to  lead  to  great  abuse. 

§  497.  It  is  the  right  and  duty  of  an  officer  charged  witli 
the  execution  of  a  warrant  for  grand  larceny  to  take  into  liis 
custody  the  property  described  in  his  warrant,  if  he  finds  it 
on  the  person,  or  in  the  possession  of  the  accused.  He  has 
no  power  under  such  j)rocess  to  search  the  house  or  premises 
for  concealed  property.  For  this  purpose,  another  process  is 
necessary.  But  he  may  search  the  person  of  the  alleged 
thief,  or  take  into  custody  the  property,  if  in  his  possession 
and  pointed  out  to  him  as  that  described  in  the  process. 
The  ends  of  justice  demand  that  this  power  should  exist,  and 
the  common  law  and  its  usao:es  have  sanctioned  its  exercise 
from  time  immemorial.-'  f 


'  Houghton  V.  Bachman,  47  Barb.  388. 

*  In  Allen  v.  Colby,  svpra^  the  court  said:  "The  conduct  of  the  defendants, 
in  their  attempts  to  arrest  the  plaintiff,  is  entitled  to  an  indulgent  construction. 
They  would  be  justified  in  using,  and  having  undertaken  this  office  for  the  select- 
men of  Guildhall,  they  would  be  bound  to  use,  all  reasonable  means  to  arrest  the 
plaintiff;  and  for  this  purjiose,  there  can  be  no  doubt,  that  in  circumstances 
which  might  be  supposed,  they  would  have  a  right  to  take  his  property.  If,  for 
instance,  he  were  meditating  flight,  and  had  a  horse  ready  saddled  to  ride  away 
on,  or  had  a  boat  prepared  to  convey  him  across  the  river  in  his  flight,  there 
could  be  no  question  of  the  officer's  right  to  take  the  horse  or  the  boat  to  prevent 
his  escape  and  accomplish  his  arrest.  Those  would  doubtless  be  stronger  cases 
than  the  present;  but  each  case  must  be  decided  on  its  own  circumstances;  and 
whether  the  officer  acted  reasonably,  discreetly  and  in  good  faith,  must,  in  cases 
of  doubt,  be  inferred  from  the  circumstances,  as  matter  of  fact." 

t  In  New  York,  the  statute  provides  that  "when  property  alleged  to  have 
been  stolen  shall  come  into  the  custody  of  any  constable,  marshal,  sheriff  or  other 
person  authorized  to  iserform  the  duties  of  any  such  officer,  lie  shall  hold  the 
same  subject  to  the  order  of  the  officers  hereinafter  authorized  to  direct  the  dis- 
position thereof."  "  Ujion  receiving  satisfactory  proof  of  the  title  of  any  owner 
of  such  property,  the  magistrate  who  shall  take  the  examination  of  the  person 
accused  of  stealing  such  i)roperty,  may  order  the  same  to  be  delivered  to  such 
owner  on  his  paying  the  reasonable  and  necessary  expenses  incurred  in  the  pres- 
ervation of  such  property,  to  be  certified  by  such  magistrate,  which  order  shall 


§  498.  LIABILITY   OF   OFFICER  IN   SEIZING   GOODS.  4^5 

§  498.  A  seizure  as  prize,  though  wrongful,  is  not  a 
trespass,  the  tort  being  merged  in  caj^ture  as  prize.^  This 
has  not  been  doubted  since  the  cases  of  Le  Caux  v.  Eden,^ 
and  of  Lindo  v,  Rodney.^  In  the  latter  Buller,  J.,  said : 
"There  is  a  current  of  authorities  from  the  time  of  Queen 
Elizabeth  to  the  present  time,  all  of  which  agree  that  the 
admiralty  has  jurisdiction,  not  only  of  the  question  of  prize 
or  not  prize,  but  of  all  its  consequences."  He  cites  the  case 
of  Rous  V.  Hazard,  argued  in  1749,  and,  determined  by 
Ch.  J.  Lee,  who  held,  with  the  concurrence  of  the  court,  that 
although  for  taking  a  ship  on  the  high  seas,  trespass  would 
lie  at  common  law,  yet  that  when  it  was  taken  as  prize, 
though  taken  ^\Tongfully,  though  it  were  acquitted,  and 
though  there  was  no  color  for  the  taking,  the  judge  of  the 
admiralty  was  judge  of  the  damages  and  costs,  as  well  as  of 
the  principal  matter ;  and  if  such  an  action  were  brought 
in  England,  and  the  defendant  pleaded  not  guilty,  the  plaint- 
iff could   not   recover.     Buller,   J.,   gives   the   true   reason 


■entitle  such  owner  to  demand  and  receive  such  property  "  (3  N.  Y.  Rev.  Stat. 
5th  ed.  p.  1041). 

Under  the  foregoing  statute,  ''  if  the  evidence  adduced  before  the  magistrate 
satisfies  him,  judicially,  that  the  property  has  in  fact  been  stolen,  and  that  the 
claimant  is  the  actual  owner,  he  has  authority,  in  his  judicial  capacity,  to  order 
its  delivery  to  such  claimant.  The  law  can  no  more  subject  him  to  an  action 
for  this,  than  for  holding  the  accused  for  trial,  or  any  other  adjudication  he  may 
make  in  the  course  of  the  proceedings  before  him.  It  is  not  intended  that  his 
order  shall  have  any  eftect  to  settle  the  question  of  title.  The  accused  is  not 
thereby  deprived  of  his  property.  He  is  still  at  liberty  to  take  any  legal  steps  he 
may  choose  to  recover  the  property  or  its  possession  from  the  person  to  whom  it 
is  delivered,  and  the  order  of  the  magistrate  would  be  no  estoppel  upon  the  ques- 
tion of  title.  Its  simple  and  only  operation  is  to  dispose  of  the  possession  of  prop- 
erty already  in  the  custody  of  the  law,  leaving  the  title  open  to  vindication  by 
any  party  claiming  to  have  it.  For  the  purpose  of  investigating,  discovering  and 
punishing  an  alleged  crime,  the  law  has  taken  into  its  own  custody  the  possession 
of  the  property  which  is  claimed  to  have  been  the  subject-matter  of  the  offense; 
and  it  provides  for  the  disposition  of  such  custody  after  the  prima  facie  establish- 
ment of  guilt  by  a  judicial  proceeding;  and  no  action  will  lie  against  the  officer 
who  is  called  upon  to  make,  and  does  make,  such  adjudication.  It  would  lead 
to  a  monstrous  perversion  of  justice  if,  at  the  close  of  an  examination,  the  accused, 
on  being  held  for  trial,  could  rightfully  demand  the  delivery  of  the  property  to 
himself  at  the  peril  of  a  suit  against  the  officer  who  detained  it.  The  statute  lias, 
therefore,  provided  that,  pending  the  proceedings  to  investigate  and  try  the  al- 
leged offense,  the  custody  of  the  property  alleged  to  be  stolen  shall  be  subject  to 
the  order  of  a  judicial  tribunal"  (Ilougiiton  v.  Bachman,  47  Barb.  388). 

'  Stoughton  V.  Taylor,  2  Paine  C.  C.  655. 

'  Dougl.  594.  ^  lb.  613,  note  1. 


480      TAKING  PERSONAL  PROPERTY  BY  OFFICER.    §  498. 

why  the  question  of  prize  or  no  prize  was  solely  con  usable 
in  the  admiralty :  "  Prizes  are  acquisitions  jure  hell%  and  the 
jus  helli  is  to  be  determined  by  the  law  of  nations,  and  not 
by  the  particular  municipal  law  of  any  country."  *  A 
vessel  cannot  be  said  to  be  captured  as  prize,  unless  the  act 
be  done  hona  jide^  and  under  a  commission  at  least  'prima 
facie  valid,  and  w^here  the  responsibility  of  the  goverment, 
Avhich  must  be  settled  according  to  the  law  of  nations,  is 
involved.  In  such  a  case,  there  is  great  propriety  in  sending 
a  party  to  a  court  of  admiralty  jurisdiction  for  redress. 
But  not  so  where  our  own  municipal  law  furnishes  the  rule 
by  which  the  claim  and  rights  of  the  parties  must  be  tested.^ 
In  trespass  for  taking  a  steam  vessel,  the  defendant  pleaded 
that  he  was  an  admiral  in  the  Portuguese  navy,  and  that  he 
took  the  vessel  as  a  lawful  prize,  which  was  condemned  by 
the  Supreme  Tribunal  of  Marine  at  Lisbon,  and  became 
forfeited  to  the  Queen  of  Portugal.  In  other  pleas  the 
trespass  w^as  justified  under  the  authority  of  the  Queen  of 
Portugal,  ^Vr6  helli.  Replication  that  the  defendant  being  a 
natural  born  subject  of  his  majesty,  in  contravention  of  the 
foreign  enlistment  act,^  accepted  the  commission  of  admiral 
without  the  leave  and  license  of  the  King  of  England.  It 
was  held  that  the  pleas  were  a  conclusive  bar  to  the  action, 
and  that  the  replication  w^as  no  answ^er  to  the  pleas.^  f 


'  Hallett  V.  Novion,  14  Johns.  273.  =  59  Geo.  3,  c.  59. 

'  Dobree  v.  Napier,  2  Hodges,  84 ;  2  Bing.  N.  C.  782. 

*  In  Lindo  v.  Rodney,  svpra^  Lord  Mansfield  said:  "A  thing  being  done  on 
the  high  seas,  does  not  exclude  the  jurisdiction  of  the  common  law.  For  seizing, 
stopping  or  taking  a  ship  on  the  high  sea,  not  as  prize,  an  action  will  lie.  But 
for  taking  as  prize,  no  action  will  lie.  The  nature  of  the  question  excludes, 
not  the  locality.  The  same  thing  was  reiterated  in  Smart  v.  Wolfe,  8  Term  R. 
344.  The  same  doctrine  was  recognized  by  the  Court  of  Appeals  of  North 
Carolina,  in  Simpson  v.  Nadeau,  Cameron  &  Norwood,  llo,  where  one  of  the 
points  relied  on  arose  from  the  conduct  of  the  captors  after  the  seizure ;  and  it 
was  contended,  that  by  such  after-conduct  the  defendant  became  a  trespasser 
ah  initio. 

t  In  another  plea,  the  defendant  averred  that  the  plaintiff  had  without  the 
leave  and  license  of  his  majesty,  the  King  of  England,  equipped  the  steam 
vessel  for  the  service  of  a  foreign  prince,  contrary  to  the  said  statute  (59  Geo.  3. 
c.  69),  whereby  the  said  vessel  was  forfeited  to  his  said  majesty.  It  was  held 
that  this  plea  was  insufficient,  because  it  showed  no  autliority  in  the  defendant 
to  seize  the  vessel. 


§  500.  PERSON   AUTHORIZED  TO   ACT   OFFICIALLY.  487 

6.  Power   and  duty   of  person   specially  autliorized  to  act 

oflicially. 

§  499.  The  appointment  of  a  special  officer  to  serve 
process,  is  a  judicial  act  which  can  only  be  exercised  by  the 
authority  signing  the  process.  Accordingly,  where  a  justice 
of  the  peace  signed  a  blank  warrant  with  a  deputation 
indorsed  on  it,  and  the  deputation  was  afterward  filled  up 
by  a  third  person,  without  the  direction  or  knowledge  of 
the  justice  ;  and  the  person  thus  deputized  served  the  writ  by 
attaching  property  ;  it  was  held  that  the  deputation  was  void, 
and  that  the  person  thus  deputed  was  a  trespasser.^  *  When 
the  action  of  certain  officers  is  required  to  do  an  act,  like  the 
making  of  a  public  highway,  they  are  not  competent  to 
delegate  the  authority  to  an  inferior  officer.^ 

§  500.  Where  a  person  who  is  not  an  officer  is  specially 
authorized  to  serve  an  execution,  he  has  no  authority  except 
that  conferred  by  such  deputation,  and  is  entitled  to  no 


'  Koss  V.  Fuller,  12  Vt.  265. 

'  Trustees  of  the  Village  of  Jordan  v.  Otis,  37  Barb.  50. 

*  In  an  action  of  trespass  for  taking  and  carrying  away  two  horses  belong- 
ing to  the  plaintiff,  the  defendant  justified  as  a  constable  under  an  appointment 
of  three  justices,  pursuant  to  the  following  statute:  "If  any  constable  chosen 
shall  refuse  to  serve,  it  shall  be  lawful  for  the  inhabitants  of  the  town  to  supply 
such  vacancy  at  a  special  town  meeting;  and  if  the  town  shall  not  within  15 
days  next  after  such  refusal,  choose  another,  it  shall  be  lawful  for  any  three 
justices  of  the  peace  residing  in  or  near  such  town,  and  they  are  required,  by 
warrant,  under  their  hands  and  seals,  to  appoint  every  such  officer  which  the 
town  ought  to  have  chosen ;  and  every  officer  so  appointed  shall  hold  his  office 
for  so  long  a  time,  and  have  the  same  powers,  and  be  liable  to  the  same  penalties, 
as  if  elected."  It  was  held  that  the  appointment  made  by  the  justices  was  a 
judicial  act  not  traversable  in  a  collateral  action,  and  remained  valid  until  set 
aside  or  quasiied  upon  certiorari  (Wood  v.  Peake,  8  Johns.  69).  By  the  court: 
"It  is  certainly  sufKcient  to  justify  the  constable.  He  comes  to  the  office  by  an 
appointment  regular  according  to  the  forms  of  law,  and  made  by  a  tribunal 
having  jurisdiction  in  the  case;  and  he  is  bound  to  accept  under  a  penalty. 
He  is  not  to  inquire,  at  his  peril,  into  the  validity  of  the  act.  It  is  sufficient 
that  three  justices  have  authority  to  make  such  appointment  in  the  given  case. 
It  would  be  intolerably  oppressive  to  place  the  constable  in  the  dilemma  of 
subjecting  himself  to  a  grievous  penalty  if  he  refuses,  or  of  being  prosecuted 
for  trespass  if  he  accepts.  If  two  justices  only  should  appoint  him,  it  would 
then  be  a  case  in  which  no  jurisdiction  existed,  and  the  appointment  would  be 
null  and  void.  The  distinction  in  the  books,  is  between  cases  where  the 
authority  proceeds  from  a  source  possessing  jurisdiction  over  the  subject-matter, 
.•ind  from  one  that  does  not.  The  ministerial  officer  can  justify  in  the  one  case, 
and  not  in  the  other  "  (See  3  Hill,  249;  5  Denio,  412). 


488  TAKING    PERSONAL  PROPERTY    BY   OiFFIOER.  §  501. 

obedience  by  reason  of  his  being  in  any  public  position.  He 
can  claim  nothing  in  this  respect  until  he  makes  his  authority 
known,  or  until  it  is  known  to  those  with  whom  he  is  deal- 
ing. When  he  attempts  to  take  possession  of  property  which 
the  owmer  informs  him  does  not  belong  to  the  judgment 
debtor,  if  he  would  avail  himself  of  the  immunities  that  at- 
tach to  public  officers  in  the  execution  of  process,  he  must  at 
once  make  known  his  authority,  and  that  he  is  acting  under 
it.  Until  he  does  this,  the  owner  may  treat  him  as  a  mere 
trespasser,  and  protect  his  property  against  him.^  A  cart- 
man  cannot,  on  account  of  his  public  employment,  claim  the 
exemption  of  a  ministerial  officer.  Where,  therefore,  a  cart- 
man,  by  the  direction  of  several  persons,  took  goods  away 
from  a  stable,  in  which  they  had  been  deposited  by  the  agent 
of  the  owner,  it  was  held  that  he  was  as  much  a  trespasser  as 
those  under  whose  orders  he  acted.^ 

7.  Validity  of  acts  of  officer  de  facto. 

§  501.  The  principle  is  well  settled  that  the  acts  of  offi- 
cers de  facto  are  as  valid  and  effectual,  when  they  concern  the 
public  or  the  rights  of  third  persons,  as  though  they  w^ere 
officers  de  jure.  An  individual  coming  into  office  by  color 
of  an  election  or  appointment  is  an  officer  de  facto.,  and  his 
acts  in  relation  to  the  public  or  third  persons  are  valid  until 
he  is  removed,  although  it  be  conceded  that  his  election  or 
appointment  was  illegal.  His  title  shall  not  be  inquired 
into.  The  mere  claim  to  be  a  public  officer,  and  the  perform- 
ance of  a  single  or  even  a  number  of  acts  in  that  character 
would  not,  perhaps,  constitute  an  individual  an  officer  de  facto. 
There  must  be  some  color  of  an  election  or  appointment,  or 
an  exercise  of  the  office,  and  an  acquiescence  on  the  part  of 
the  public  for  a  length  of  time  w^hich  would  afford  a  strong 
presumption  of  at  least  a  colorable  election  or  appointment. 
In  Wilcox  V.  Smith, ^  Smith  brought  against  Wilcox  an  action 

'  Burton  v.  Wilkinson,  18  Vt.  188 ;  Leach  v.  Francis,  41  lb.  670. 
'  Thorp  V.  Burling,  11  Johns.  285.  =  5  Wend.  231. 


§  502.       LIABILITY   OF   SHERIFF   FOR  ACTS   OF   DEPUTY.  489 

of  trespass  de  bonis  asporiatis  in  the  Court  of  Common  Pleas, 
to  which  the  defendant  pleaded  that  he  took  the  goods  as  a 
constable  under  an  execution  issued  in  June,  1826,  on  a  judg- 
ment against  Smith  rendered  by  one  Ingersoll,  a  justice  of 
the  peace  of  the  town  of  Shelby,  in  the  county  of  Orleans. 
It  w^as  admitted  that  the  execution  was  regular  on  its  face. 
The  town  of  Shelby  was  formerly  in  Genesee  county,  but, 
with  several  other  towns,  was  erected  in  1825  into  a  separate 
county  called  Orleans,  alter  which  Ingersoll  continued  to  act 
as  a  justice.  The  plaintiff  proved  that  four  justices  of  the 
peace  for  the  town  of  Shelby  were  appointed  in  1825,  and 
that  Ingersoll  was  not  one  of  them.  Evidence  offered  by  the 
defendant  to  show  that,  in  1823,  Ingersoll  was  duly  sworn 
into  office  as  a  justice  of  the  peace  of  the  county  of  Genesee, 
was  rejected.  The  judge  charged  the  jury  that,  as  it  was 
proved  that  Ingersoll  was  not  appointed  a  justice  of  the 
peace  of  Orleans  county,  the  process  issued  by  him  was  void, 
and  did  not  protect  the  constable ;  but  the  judgment,  which 
was  for  the  plaintiff,  was  reversed  by  the  Supreme  Court.* 

8.  Liability  of  sheriff  for  illegal  acts  of  deputy. 

§  502.  We  have  seen  ^  that  the  sheriff  is  liable  civiliter 
for  the  acts  of  his  deputies  done  in  the  usual  course  of  their 
duties.  The  deputies  are  the  servants  of  the  sheriff",  and  all 
are  considered  in  law  but  one  officer.  The  lialjility  of  the 
sheriff  as  a  trespasser,  for  the  act  of  his  deputy  in  taking  the 
i  ~~ 

'  Ante,  §  50. 

*  In  this  case,  the  Supreme  Court  said:  "There  is  no  direct  evidence  that 
Ingersoll  came  into  office  under  color  of  an  election.  But  it  is  shown  that  he 
was  an  acting  justice  of  the  town  of  Shelby,  in  the  county  of  Genesee,  for  at 
least  two  years  before  the  county  of  Orleans  was  erected,  in  April,  1825  ;  and  that 
he  continued  to  act  as  such  justice  in  the  same  town  after  it  became  a  part  of 
Orleans  county,  down  to  December,  1836.  This  evidence  warrants  the  presump- 
tion that  he  was  elected  a  justice  while  his  town  was  a  part  of  the  county  of 
Genesee,  and  that  he  continued  to  act  l)y  virtue  of  that  authority  in  the  county 
of  Orleans;  and  it  has  been  judicially  determined  that  the  transfer  of  a  town 
from  one  county  to  another  does  not  terminate  or  affect  the  offices  or  powers  of 
its  magistrates.  The  proof  on  the  part  of  the  plaintiff,  therefore,  that  Ingersoll 
had  never  been  appointed  a  justice  of  the  county  of  Orleans  since  its  organiza- 
tion, did  not,  when  taken  in  connection  with  the  other  evidence  in  tiic  case,  im- 
peach his  title  to  the  office  or  rebut  i\\G  jjrivia  facie  evidence,  if  it  is  to  be  con- 
sidered but  2/)'i7na  facie,  which  had  been  given  by  the  defendant." 


490  TAKING    PERSONAL    PROPERTY  BY  OFFICER.  §  502. 

goods  of  one  person  to  satisfy  the  debt  of  another,  upon  exe- 
cution, has  uniformly  been  held  to  be  law,  at  least  ever  since 
the  case  of  Ackworth  v.  Kempe,^  where  the  precise  point 
was  expressly  adjudged.  In  Mclntyre  v.  Trumbull,^  the 
court  went  so  far  as  to  hold  the  sheriif  liable  where  the 
deputy  took  more  fees,  in  levying  an  execution,  than  were 
allowed  by  law,  whether  the  sheriff  recognized  the  act  of  the 
deputy  or  not.  And  the  liability  of  the  sheriff  for  all  of  the 
acts  of  the  deputy  official  in  their  character,  in  executing 
process,  has  been  held  to  exist,  although  the  sheriff  did  not 
know  that  the  deputy  had  the  process.^  There  is,  however, 
a  class  of  cases  where  the  plaintiff  in  the  execution  has  given 
the  deputy  some  special  directions  out  of  the  ordinary  line 
of  his  duty  as  deputy,  which  the  deputy  has  followed,  in 
which  it  has  been  held  that  the  sheriff  was  not  liable.* 

'  Dougl.  40.  ''  7  Johns.  35. 

^  Grinnell  v.  Phillips,  1  Mass.  530;  Campbell  v.  Phelps,  17  lb.  244;  s.  c.  1 
Pick.  62;  Tuttle  v.  Cook,  15  Wend.  274;  Walden  v.  Davison,  lb.  575;  Curtis  v. 
Fay,  37  Barb.  64;  The  People  v.  Schuvler,  4  Comst.  173;  Pond  v.  Leman,  45 
Barb.  152;  Miller  v.  Baker,  1  Mete.  27;"'Vanderbilt  v.  The  Richmond  Turnpike 
Co.  2  N.  Y.  R.  479;  Tower  v.  Wilson,  3  Caines,  174,  co7itra. 

*  Where  a  deputy  sheriff  attached  a  horse,  and  delivered  him  for  safe  keeping 
to  a  third  person,  and  afterwards  another  deputy  of  the  same  sheriff  seized  the 
horse  on  an  execution  against  the  same  debtor,  while  in  the  custody  of  the  bailee, 
and  sold  him,  though  forbidden  so  to  do  by  the  bailee,  it  was  held  that  the  dep- 
uty who  made  the  first  attachment  might  maintain  an  action  of  trespass  for  this 
injury  against  the  sheriff  (Walker  v.  Foxcroft,  2  Maine,  270).  Mellen,  C.  .J. : 
"  Another  creditor,  by  placing  his  writ  in  the  hands  of  the  deputy  who  made  the 
first  attachment,  might  have  caused  it  to  oe  attached  by  him  subject  to  the  first 
attachment;  and  perhaps,  if  such  second  writ  were  placed  in  the  hands  of  the 
sheriif  himself,  the  goods  might  be  considered  as  attached  by  him  subject  to  the 
prior  attachment  made  by  his  deputy.  Be  this  as  it  may,  no  act  of  the  sheriff, 
or  any  other  deputy,  can  defeat  or  impair  the  rights  of  the  first  attaching  deputy. 
In  the  present  action,  the  sheriff  is  not  sued  for  his  own  act,  but  the  act  of  one 
of  his  deputies,  for  wliich,  if  wrongful,  he  is  by  law  liable  to  the  injured  party, 
and  the  deputy  is  liable  over  to  him.  The  reason  assigned  why  trespass  vi  et 
armis  will  not  lie  is,  that  the  possession  of  the  plaintiff  is  the  possession  of  the 
sheriff;  and  that  both  being  in  possession,  trespass  will  not  lie  by  one  against  the 
other.  Tliis  seems  to  be  an  objection  more  technical  than  true  in  fact,  and  more 
refined  than  solid.  Neither  the  special  property  nor  the  possession  of  the  plaintiff 
is  joint  or  in  common  with  the  sherifl';  and  if  it  were,  that  circumstance  would 
furnish  an  objection  as  fatal  to  an  action  of  trover  as  to  an  action  of  trespass. 
And  yet,  numerous  cases  of  trover  and  replevin  have  been  sustained  in  similar 
circumstances"  (citing  1  Chitty's  PI.  66,  165).  In  Walker  v.  Foxcroft,  supra, 
Mellen,  C,  J.,  remarked  that  the  case  of  Thompson  v.  Marsh  (14  Mass.  269)  was 
in  all  respects  exactly  like  the  one  before  the  court,  except  that  the  then  action 
was  against  the  sheriff  for  the  deputy's  neglect,  instead  of  being  against  the 
deputy  himself  for  his  own  neglect  or  wrons,  and  except  also  that  in  the  case 
mentioned  the  action  was  trover,  and  in  the  case  at  bar  the  action  was  ti'espass. 


§  503.       LIABILITY   OF   SHERIFF   FOR  ACTS   OF   DEPUTY.  491 

§  503.  The  sheriff  is  a  trespasser  for  the  acts  of  his 
deputy,  rather  by  fiction  of  Liw  for  the  better  security  of  the 
party,  than  from  analogy  to  the  principles  which  constitute 
joint  trespassers  generally.  He  neither  does  the  act  himself, 
nor  is  present  aiding  and  abetting.  Nor  is  it  done  by  his 
express  order.  The  deputy  is  regarded  as  acting  under  the 
command  of  the  law,  as  much  as  the  sheriff  himself  would  be 
if  the  act  were  done  by  him.  He  acts  upon  each  particular 
precept  independently  of  his  master's  orders ;  and  he  cannot, 
while  he  remains  in  office,  be  prevented  by  the  sheriff  from 
executing  any  precept  which  comes  lawfully  into  his  hands. 
The  liability  of  the  sheriff  arises  from  the  peculiar  relation 
which  exists  between  him  and  his  deputy,  and  is  imposed  by 
law,  in  order  that  he,  being  always  a  responsible  person,  may 
stand  as  a  substitute  for  the  deputy,  when  any  wrongful  act 
is  done.  *  From  the  foregoing  consideration,  it  will  be  per- 
ceived that  the  sheriff  and  his  deputy  are  not  to  be  consid- 
ered as  joint  trespassers  in  any  tort  done  by  the  latter  alone,, 
so  as  to  subject  them  either  to  a  joint  action,  or  to  give  the 
party  injured  a  right  to  bring  his  action  against  one,  after 
having  recovered  judgment  and  sued  out  execution  against 
the  other.  ^  f     Where  however,  there  is  personal  interference 


'  Campbell  v.  Pbelps,  1  Pick.  63 ;  Moulton  v.  Norton,  5  Barb.  386 ;  Cowen 
&  Hill's  Notes,  833 ;  ante,  §  50. 

*  In  California  it  has  been  held  that  in  an  action  of  trespass  against  a  sheriflf 
personally  and  not  as  sheriff,  the  defendant  may  prove  that  he  was  sheriff,  and 
that  his  deputy,  as  such,  committed  the  trespass  (Poinsett  v.  Taylor,  6  Cal.  78). 

Where  in  an  action  of  trespass  against  a  sheriff  for  the  act  of  his  deputy,  the 
father  of  the  deputy  was  objected  to  as  a  juror,  the  court  in  holding  him  compe- 
tent, said  :  "It  might,  indeed,  have  been  very  naturally  supposed  that  before  a 
release  was  executed,  and  while  the  deputy  was  liable  to  the  sheriff  upon  his 
bond,  or  while  he  was  liable  himself  to  an  action  for  the  alleged  trespass,  a  bias 
might  have  been  created  in  his  mind  by  conversations  on  the  subject  of  the  con- 
troversy. But  such  distinctly  appears  from  his  own  answer  not  to  have  been  the 
fact,  and  it  is  difficult  to  imagine  any  ground  for  imputing  to  him  any  desire 
that  tiie  cause  should  result  one  way  more  than  another"  (Seavy  v.  Dearborn,  19 
N.  Hamp.  351). 

A  judgment  for  tlie  defendant,  in  an  action  against  a  sheriff's  deputj',  may  be 
given  in  evidence  \>y  the  sheriff  in  an  action  afterward  brought  against  him  for 
the  same  matter  (King  v.  Chase,  15  N.  Ilamp.  9). 

t  The  injured  party  may,  at  his  election,  bring  his  action  directly  against  the 
deputy  or  against  the  sheriff,  and  may,  in  the  latter  case,  charge  the  wrong  gen- 
erally as  committed  l)y  the  sheriff,  and  on  the  trial  prove  it  to  have  been  com- 
mitted by  the  deputy,  for  whose  act  he  is  answerable;  or,  he  may  in  his  action. 


492      TAKIKG  PERSONAL  PROPERTY  BY  OFFICER.    §  504. 

on  the  part  of  the  sheriff,  he  and  his  deputy  are  liable  as 
joint  trespassers,  independently  of  the  official  relation  exist- 
ing between  them.  ^ 

1).  Liability  of  assessors  of  taxes. 

§  504.  Formerly  in  Massachusetts,  when  property  was 
seized  for  a  tax  illegally  assessed,  an  action  of  trespass  would 
lie  against  the  assessors.^  In  Stetson  v.  Kempton,^  which 
was  an  action  of  trespass  against  assessors  for  an  illegal 
assessment,  whereby  the  j)laintiff's  carriage  and  harness  were 
taken  and  sold,  one  of  the  defenses  relied  upon  was,  that  as 
the  defendants  were  authorized  to  make  the  assessments  by 
vote  of  the  town,  they  were  mere  servants  or  ministerial 
officers,  and  ought  not  to  be  liable  to  an  action  for  the  per- 
formance of  an  official  duty.  The  court  said  that  the  assess- 
ors were  not  obliged  to  assess  an  illegal  tax ;  that  they  were 
at  liberty  to  exercise  their  judgment  on  the  subjects  for 
which  the  money  appeared  to  be  voted,  and  might  refuse  to 
cause  the  collection  to  be  enforced  if  they  deemed  the  tax 
illegal ;  that  if  they  were  not  liable  to  an  action,  it  would  be 
difficult  to  find  a  remedy ;  that  the  constable  or  collector  was 
not  answerable,  because  he  acted  in  obedience  to  a  warrant 
under  the  hands  and  seals  of  the  assessors,  who  had  jurisdic- 
tion over  the  subject,  and  authority  to  assess  a  tax,  and  to 
issue  their  warrant ;  that  if  an  action  would  lie  against  the 
town,  it  could  only  be  for  the  money  actually  received  into 
the  treasury,  which  in  most  cases  would  be  but  a  partial 
remedy ;  and  that  the  assessors  must  be  answerable,  or  there 
would  be  a  defect  of  justice.  * 

against  the  sheriff  declare  specially,  alleging  the  wrong  to  have  been  committed 
by  the  deputy  (Walker  v.  Foxcroft,  3  Maine,  270;  Walker  v.  Haskell,  11  Mass. 
177;  Nye  V.  Smith,  lb.  188;  Draper  v.  Arnold,  13  lb.  449;  Train  v.  Wellington, 
lb.  495 ;  Campbell  v.  Phelps.  17  lb.  244). 

'  Waterbury  agst.  Westervelt,  9  N.  Y.  598. 

*  Agry  V.  Young,  11  Mass.  220;  Inglee  v.  Bosworth,  5  Pick.  498. 
'  13  Mass.  273. 

*  In  Stetson  v.  Kempton,  svjwa.,  the  tax  was  voted  by  the  town  to  raise 
money  to  repel  a  threatened  invasion  during  the  war  between  the  United  States 
and  Great  Britain.     At  a  meeting  of  the  inhabitants  of  the  town  it  was  voted 


§  505.  LIABILITY   OF  ASSESSORS  OF   TAXES.  495 

§  505.  The  liability  of  assessors  of  taxes  as  trespassers 
was  held,  in  Massachusetts,  to  apply  to  a  case  where  war- 
rants were  issued  by  assessors  for  several  taxes,  some  of 
which  were  illegal,  and  the  officer  siezed  and  sold  more  goods 
than  were  required  to  pay  the  taxes  which  were  legal.^  *     In 

unanimously  to  raise  the  tax;  but  the  plaintiff  was  not  present  at  the  meeting. 
Towns,  in  relation  to  their  power  to  raise  money  and  cause  it  to  be  assessed  and 
collected,  are  restricted  by  the  statute  of  Massachusetts  of  1785,  ch.  75,  to  "  pro- 
viding for  the  poor,  for  schools,  for  the  support  of  public  worship,  and  other 
necessary  charges."  The  tax  which  was  exacted  of  the  plaintiff,  must  come 
within  the  last  clause,  or  it  could  not  be  supported.  The  Supreme  Court,  in 
holding  that  the  assessment  was  illegal,  and  the  plaintiff  therefore  entitled  to 
recover,  said:  "The  phrase  '■■necessary  charges^  is  indeed  general;  but  the  very 
generality  of  the  expression  shows  that  it  must  have  a  reasona)>le  limitation. 
For  none  will  suppose  that  under  this  form  of  expression,  every  tax  would  be 
legal  which  the  town  should  choose  to  sanction.  The  proper  construction  of  the 
terms  must  be, 'that  in  addition  to  the  money  to  be  raised  for  the  poor,  schools,, 
etc.,  towns  might  raise  such  suras  as  should  be  necessary  to  meet  the  ordinary 
expenses  of  the  year;  such  as  the  payment  of  such  municipal  officers  as  they 
should  be  obliged  to  employ,  the  support  and  defense  of  such  actions  as  they 
might  be  parties  to,  and  the  expenses  they  would  incur  in  performing  such  du- 
ties as  the  laws  imposed — as  the  erection  of  powder  houses,  providing  ammuni- 
tion, making  and  repairing  highways  and  town  roads,  and  other  things  of  a  like 
nature ;  which  are  necessary  charges,  because  the  effect  of  a  legal  discharge  of 
their  corporate  duty.  The  erection  of  public  buildings  for  the  accommodation 
of  the  inhabitants,  such  as  town  houses  to  assemble  in,  and  market  houses  for 
the  sale  of  provisions,  may  also  be  a  proper  town  charge,  and  may  come  within 
the  fair  meaning  of  the  term  necessary ;  for  these  may  be  essential  to  the  comfort 
and  convenience  of  the  citizens.  But  it  cannot  be  supposed  that  the  building  of 
a  theater,  a  circus,  or  any  other  place  of  mere  amusement,  at  the  expense  of  the 
town,  could  be  justified  under  the  term  necessary  town  charges.  Nor  could  the 
inhabitants  be  lawfully  taxed  for  the  purpose  of  raising  a  statue  or  a  monument, 
these  being  matters  of  taste  and  not  of  necessity ;  unless  in  populous  and  wealthy 
towns  they  should  be  thought  suitable  ornaments  to  buildings  or  squares,  the 
raising  and  maintenance  of  which  are  within  the  duty  and  care  of  the  governors 
or  officers  of  such  towns.  With  respect  to  the  defense  of  any  town  against  the 
incursions  of  an  enemy  in  time  of  war,  it  is  difiicult  to  see  any  principle  upon 
which  that  can  become  a  necessary  town  charge.  It  is  not  a  corporate  duty  to 
defend  a  town  against  an  enemy.  This  is  properly  the  duty  of  the  State  or  gov- 
ernment, and  is  the  most  essential  consideration  for  the  obligation  of  the  citizen 
to  contribute  to  the  general  treasury.  The  government  is  to  protect,  and  the 
citizen  is  to  pay.  By  the  Constitution  of  the  United  States,  this  duty  is  devolved 
upon  the  national  government ;  and  although  it  may  be  impracticable,  in  so  ex- 
tensive a  territory,  to  furnish  competent  security  to  every  section  or  point,  yet  it 
does  not  follow  that  corporations  of  limited  powers  like  towns,  can  take  upon 
themselves  the  duty,  and  exact  money  of  their  citizens  for  the  execution  of  it. 
It  cannot  be  pretended  that  a  town  could  lawfully  tax  the  inhabitants  to  raise 
and  maintain  a  military  force  for  their  protection  against  an  enemy.  Such  a 
protection,  it  is  obvious,  can  only  be  lawfully  given  by  the  State,  or  ruling 
power;  and  if  that  is  not  adecpiate,  the  voluntary  exertions  or  contributions  of 
the  inhabitants  must  supply  the  deficiency." 

'  Libby  v.  Burnham,  15  Mass.  144. 

*  In  tills  case  the  court  said:  "If  no  more  property  had  been  taken  than  was 
sufficient  to  satisfy  the  legal  tax,  then,  perhaps,  trespass  would  not  lie,  altliough 
the  warrants  for  the  other  taxes  had  been  used  at  the  same  time  in  taking  the 


494      TAKING  PERSONAL  PROPERTY  BY  OFFICER.     §  505. 

Stetson  V.  Kempton/j  it  was  objected  that  as  part  of  the 
money  composing  the  tax  was  raised  for  legal  purposes,  the 
assessment  must  be  considered  so  far  legal  as  to  support  the 
warrant  issued  by  the  defendants  ;  otherwise  they  would  be 
held  to  pay  in  damages  for  money  which  lawfully  belonged 
to  the  town.  The  court,  however,  remarked  that  when  a 
part  of  a  tax  was  illegal,  all  the  proceedings  to  collect  it 
must  be  void,  as  it  was  impossible  to  separate  and  distin- 
guish, so  that  an  act  should  be  in  part  a  trespass  and  in  part 
innocent;  but  that  whether  the  damages  might  not  be 
diminished  in  proportion  to  the  sum  which  should  appear  to 
be  a  lawful  subject  of  taxation,  might  be  considered  in  the 
inquiry  which  was  still  to  be  had  by  the  jury.  In  Vermont, 
where  legal  taxes  were   blended  and  incorporated  with  an 

property.  But  here  the  property  was  avowedly  taken  as  sufficient  to  satisfy  all 
the  warrants,  and  it  was  sold  under  the  authority  of  all.  If  there  was  no  tres- 
pass in  the  original  taking,  on  account  of  the  legal  warrant,  yet  the  proceeding 
to  sell  under  all  was  an  abuse  of  authority,  and  renders  those  who  commanded 
the  act  liable,  as  trespassers,  for  the  whole.  If  the  property  taken  had  been 
an  individual  article,  in  its  nature  not  separable,  although  of  more  value,  per- 
haps trespass  could  not  have  been  maintained.  But  here  two  oxen  were  taken, 
and  they  were  palpably  more  than  ought  to  have  been  taken  to  satisfy  the  legal 
warrant.  The  collector  must,  therefore,  have  acted  under  a  void  authority  in 
seizing  the  oxen ;  and  the  defendants,  having  commanded  that  act,  are  charge- 
able in  this  action.  When  the  property  of  a  man  is  taken  without  lawful  au- 
thority, he  has  a  right  to  the  value  of  that  property,  at  the  least  in  damages.  A 
tax  is  no  debt  untitit  is  assessed  and  demanded;  and  if  not  legally  assessed,  it 
is  the  same  as  if  never  assessed  at  all.  So  that  to  reduce  the  damages  on  the 
ground  that  the  plaintiff  owed  a  part  of  the  money  claimed  from  him,  would  be 
unauthorized  by  legal  principles.  What,  then,  is  to  be  done  when  assessors 
have  neglected  their  duty  or  gone  beyond  their  authority  ?  Is  the  whole  tax  to 
be  lost  ?  There  is  no  need  of  this.  The  tax  may  be  reassessed,  or  the  town  may 
renew  their  vote  to  raise  the  money.  And  it  is  better  that  they  should  suffer 
this  inconvenience  than  that  the  property  of  the  citizen  should  be  taken  from 
him  to  satisfy  arbitrary  exactions,  limited  by  no  rule  but  the  will  of  assessors." 
Where  the  assessors  of  a  religious  society  illegally  assessed  a  tax  on  a  person 
who  was  not  a  member  of  the  society,  it  was  held  that  an  action  of  trespass 
might  be  maintained  against  them  therefor  (Gage  v.  Currier,  4  Pick.  399). 

In  Bangs  v.  Snow  et  al.  1  Mass.  181,  a  question  arose  as  to  the  power  of  a 
parish  to  raise  by  vote  a  sum  of  money,  and  assess  it  upon  the  inhabitants,  for 
the  purpose  of  defraying  the  expense  of  procuring  an  act  of  incorporation. 
The  court  were  unanimously  of  the  opinion  that  the  parish  had  no  such 
authority,  and  refused  to  hear  an  argument,  saying  it  was  questioning  first 
principles ;  for  that  a  parish  had  power,  by  statute,  to  raise  money  only  for  the 
purposes  expressed  by  law,  and  for  expenses  incident  to  such  purposes.  The 
same  doctrine  was  recognized  in  a  subsequent  decision  (5  Mass.  547),  wherein 
it  was  held  that  the  power  of  raising  money  in  towns  and  parishes  was  limited 
by  statute  to  the  objects  expressly  provided  for,  and  such  expenses  as  are  neces- 
sarily incident. 

'  13  Mass.  272. 


§  506.  LIABILITY  OF  ASSESSORS  OF  TAXES.  495 

illegal  tax  assessed  by  the  selectmen  of  a  town,  under  a  vote 
of  the  town,  it  was  held  that  the  whole  were  uncollectable, 
and  that  the  selectmen  were  liable  for  the  full  value  of  the 
property  siezed  and  sold,  without  deduction  for  the  legal 
portion  of  the  taxes.  The  court  remarked  that  had  the 
illegal  portion  of  the  tax  been  laid  and  assessed  as  a  distinct 
tax,  there  would  have  been  no  difficulty  in  enforcing  other 
taxes  lawfully  laid.  But  the  tax  laid  for  an  object  not 
within  the  corporate  purposes  or  powers  of  the  town,  and 
which  the  corporation  could  not  legally  impose,  being  blended 
in  the  outset,  by  the  vote  creating  it,  with  taxes  for  legiti- 
mate purposes,  and  so  assessed,  it  was  impossible  for  the 
court  to  discriminate  between  that  portion  of  the  tax  which 
could  be  legally  laid  and  that  which  could  not.  Hence,  the 
whole  proceeding  was  declared  void,  and  the  whole  matter 
rested  where  it  would  have  done  had  no  vote  been  taken 
imposing  a  tax  for  any  purpose.^  In  New  York,  assessors 
are  within  the  protection  accorded  to  those  who  act  judi- 
cially, and  are  not  personally  liable  for  errors  or  mistakes  in 
the  assessment  of  property,  when  they  have  jurisdiction  and 
act  within  the  scope  of  their  authority.  But  their  power, 
which  is  limited  and  special,  must  be  strictly  pursued. 
When  they  exceed  it,  they  are  civilly  liable  to  any  person 
injured  thereby.  An  assessment  of  a  person  over  whom 
they  had  no  jurisdiction,  or  after  their  power  as  assessors 
had  ceased,  would  be  a  wrongful  act,  for  which  they  would 
be  responsible  in  damages  to  the  injured  party.^ 

§  506.  By  the  statute  of  Massachusetts  of  1823,^  towns 
are  made  liable  for  illegal  taxes  assessed  and  collected  by 
their  order.  But  this  statute,  which  exempts  assessors  from 
all  responsibility  for  the  assessment  of  any  tax  upon  the 
inhabitants  of  any  city,  town,  district,  parish,  or  other  re- 
ligious  society,  when  thereto    required  by  the  constituted 

'  Drew  V.  Davis,  10  Vt.  506. 

'  Clark  V.  Norton,  49  N.  Y.  343 ;  s.  c.  3  Lans,  484 ;  Westfall  v.  Preston,  49 
N.  Y.  349. 

'  Ch.  138. 


496  TAKING    PERSONAL    PROPERTY   BY  OFFICER.  §  507. 

authorities  thereof,  except  only  for  their  own  integrity  and 
fidelity,  does  not  embrace  school  districts.^  In  Taft  v.  Met- 
calf,^  whicli  was  an  action  of  trespass  against  the  clerk  of  a 
school  district,  it  was  argued  that  the  assessors  were  merely 
ministerial  officers,  like  the  collector,  and  so  w^ere  bound  to 
assess  the  tax  upon  receiving  the  clerk's  certificate.  But  the 
court  remarked  that  this  ground  was  not  tenable ;  that  as- 
sessors were  at  liberty  to  exercise  their  own  judgment  upon 
the  legality  and  regularity  of  the  proceedings,  and  were 
therefore  not  obliged  to  assess  an  illegal  tax."^  In  Rhode 
Island,  trustees  of  a  school  district  w^ere  held  to  be  trespass- 
ers in  illegally  assessing  a  school  tax  w^hich,  under  their 
warrant,  was  levied  upon  the  property  of  the  plaintiff.^ 
And  the  same  ^vas  held  in  Xew  Hampshire,  in  relation  to  a 
militia  caj^tain  who  issued  a  warrant  for  the  collection  of  an 
illegal  fine.*  f 

§  507.  In  Connecticut,  where  the  selectmen  of  a  town 
make  out  an  illegal  rate  bill  and  cause  a  warrant  to  be  issued 
thereon,  they  are  liable  as  trespassers  to  those  whose  prop- 
erty is  taken  under  the  warrant.  ^  And  in  New  Hampshire, 
where  selectmen  taxed  an  individual  who  had  caused  an  in- 

'  Little  V.  Merrill,  10  Pick.  543.  "  11  Pick.  456. 

^  Crandall  v.  James,  6  R.  I.  144.  ^  Youug  v.  Hyde,  14  jS".  Hamp.  35. 

^  Thames  Manf.  Co.  v.  Lathrop,  7  Conn.  550. 

*  The  power  given  to  towns  by  the  statute  (of  Massachusetts  of  1789,  ch.  19, 
§  2)  to  determine  and  define  the  limits  of  school  districts  can  be  executed  only 
by  a  geographical  division  of  the  town  for  that  purpose,  and  where  it  is  not  done, 
the  assessment  and  collection  of  the  school  district  tax  will  be  unlawful,  and  the 
assessor  liable  as  a  trespasser.  In  Withington  v.  Eveleth,  7  Pick.  106,  the  com- 
mittee appointed  by  authority  of  the  town  to  determine  and  define  the  limits  of 
the  districts  ran  no  lines  and  established  no  boundaries,  but  merely  mentioned 
and  descriljed  the  persons  of  whom  the  district  was  composed.  They  probably 
intended  that  the  lands  occupied  by  these  persons  should  be  included  within  the 
district,  but  their  intention  was  not  matter  of  record,  and  according  to  the  terms 
of  their  report,  their  limitation  was  merely  personal,  and  the  district  would  fluc- 
tuate with  the  change  of  residence  of  the  persons  mentioned. 

t  la  Henry  v.  Sargeant,  13  N.  Hamp.  321,  the  suit  was  brought  against  the  de- 
fendants as  selectmen.  It  was  an  action  on  tlie  case  for  the  illegal  assessment  of 
a  tax,  the  plaintiff"  having  been  arrested  and  imprisoned,  and  subsequently  pay- 
ing the  tax.  It  was  objected  that  the  action  should  have  been  ti'espass,  and 
not  case.  It  was  held  that  the  plaintiff  had  his  election :  that  he  might  regard 
the  wrongful  assessment  as  the  cause  of  the  injury,  and  declare  in  case ;  or  he 
might  treat  the  arrest  by  the  collector  as  the  act  of  the  selectmen,  and  declare  in 
trespass. 


§  507.  LIABILITY  OF    ASSESSORS   OF   TAXES.  497 

voice  to  1)6  duly  given  in,  beyond  the  proportion  he  would 
have  Vjeen  liable  to  pay  upon  the  invoice,  and  the  taxes  were 
collected  Ijy  distress,  it  -was  held  that  he  might  maintain  tres- 
pass for  the  injury ;  it  being  of  the  same  character  as  if  they 
had  assessed  and  collected  upon  him  and  others,  a  tax  beyond 
the  amount  authorized  by  law.  ^  *  In  New  York,  the  trust- 
ees of  a  common  school  district  are  liable  in  trespass  for 
making  an  assessment  and  issuing  a  warrant  for  the  collec- 
tion of  a  tax  voted  at  a  district  meetino-  which  is  not  author- 
ized  by  law.  ^f     They  are  confined  strictly  to  the  authority 

'  Walker  v.  Cochran,  8  N.  Hamp.  166.  -  Baker  v.  Freeman,  9  Wend.  36. 

*  Where  a  collector  of  taxes  Avas  furnished  a  list  of  taxes  which  was  not 
properly  and  legally  made,  and  the  selectmen  delivered  to  him  a  warrant  under 
their  hands  and  seals,  directing  him  to  collect  the  sums  mentioned  in  the  list,, 
and  in  pursuance  of  such  direction  the  collector  seized  and  carried  away  the 
plaintiff's  cattle,  it  was  held  that  the  selectmen  were  liable  as  trespassers  (Chase' 
V.  Sparhawk  et  al.  2  Fost.  134;  Woods,  J.:  "If  the  precept  was  unauthorized, 
and  void  for  want  of  a  sufficient  list  accompanying  it,  still,  the  direction  in  it 
was  a  command  of  the  defendants,  and  the  act  which  was  performed  was  done- 
in  pursuance  of  it.  The  mere  fact  that  the  warrant  in  virtue  of  which  the 
attachment  was  made  was  void,  and  did  not  duly  authorize  the  act  and  juslifj 
the  collector,  and  even  that  the  collector  was  not  bound  to  obey  the  direction  in 
the  warrant,  cannot  protect  the  defendants  against  the  consequences  of  the  act 
which  they  in  fact  directed  to  be  done.  The  trespass  being  committed,  both  the 
agent  and  the  person  directing  it  are  liable.  And,  in  fact,  the  defendants 
should  be  liable  rather  than  the  collector.  The.  omission  of  duty  being  on  their 
part,  rather  than  on  the  part  of  the  collector,  tlie  consequences  should  attend 
them  also.  The  seizure  of  the  property  is  properly  treated  as  the  ground  of  the 
action,  and  being  without  legal  authority,  was  a  trespass  in  the  collector,  and  so 
also  in  the  defendants,  by  whose  order  and  direction  it  was  made.  The  plaintiff 
might  well  regard  the  act  of  the  collector  as  the  act  of  the  defendants,  as  he  has 
done,  and  declare  in  trespass  against  them"  (citing  Batchelder  v.  Whitcher,  9 
N.  Hamp.  239;  Henry  v.  Sargeant,  13  K  Hamp.  321). 

t  In  Baker  v.  Freeman,  supra,  the  court  said :  "  The  powers  and  duties  of 
the  trustees  being  so  extensive  and  exclusive  in  the  management  of  all  the  affairs 
of  the  district,  a  correspondent  vigilance  and  attention  to  the  rights  of  the  dis- 
trict should  be  required  from  them ;  and  I  perceive  no  greater  hardship  in  hold- 
ing them  responsible  for  the  execution  of  an  illegal  resolution  or  vote  proceeding 
from  a  district  meeting,  than  in  holding  a  party  liable  for  the  execution  of  pro- 
cess issued  by  a  court  without  authority.  They  are  not  bound  to  carry  into  effect 
such  illegal  resolutions.  The  resolutions  of  such  meetings  are  often  passed  by 
the  procurement  of  the  trustees,  and  the  trustees  are  generally  looked  to  as  the 
advisers  of  all  measures  in  whicli  the  interest  of  the  district  is  concerned.  They 
can  at  any  time  call  a  special  meeting  of  the  inhabitants  to  revise  and  correct 
any  erroneous  or  illegal  step.  For  these  reasons,  I  am  of  opinion  that  trespass 
lies  against  them,  in  a  case  like  the  present.  Even  if  ^dewed  in  the  character  of 
ministerial  officers,  I  think  they  would  be  liable,  on  the  ground  that  the  resolu- 
tion showed  on  its  face,  that  it  was  passed  without  authority.  It  raised  money 
to  purchase  a  site  for  a  school  house  when  the  district  already  had  one,  and 
which,  of  course,  must  have  been  known  to  the  trustees ;  and  as  before  remarked, 
if  the  trustees  acted  without  authority  in  respect  to  one  of  the  votes  or  resolu- 
tions, the  whole  proceeding  is  vitiated  and  void." 

Vol.  L— 32 


498  TAKING   PEKSONAL   PROPERTY  BY  OFFICER.  §  508. 

conferred  upon  them  by  tlie  statute.  In  issuing  a  warrant 
for  the  collection  of  a  tax,  they  act  as  ministerial  officers ;  and 
where  the  statute  prescribes  the  form  and  legal  effect  of  the 
process,  they  will  be  trespassers  if  they  depart  from  it.  The 
warrant  being  the  only  authority  of  the  collector,  it  will  not 
aid  his  case  that  he  departed  from  it  and  proceeded  in  a  way 
Avhich  would  have  been  legal  if  the  process  delivered  to  him 
had  been  in  the  proper  form.  When  the  warrant  is  void  on 
its  face,  both  the  collector  and  trustees,  if  they  act  under  it, 
will  be  trespassers.  ^  Under  a  statute  which  required  that 
the  trustees  of  a  school  district,  in  making  out  their  tax  list 
should  be  guided  by  the  last  assessment  roll  of  the  assessors 
of  the  town,  after  it  had  been  reviewed  and  finally  established, 
an  abstract  was  taken  by  the  trustees  from  the  assessment 
roll  before  it  was  finally  established.  A  tax  list  having  been 
made  out  in  conformity  therewith,  a  warrant  issued  for  the 
collection  of  the  tax,  and  property  sold,  the  assessment  roll 
was  subsequently  reduced.  It  was  held  that  the  trustees 
were  answerable  as  trespassers ;  but  that  the  tax  collector 
was  not  liable ;  the  trustees  having  jurisdiction,  and  their 
warrant  affording  him  protection.  ^  * 

10.  lAahility  of  collector  of  taxes. 
§  508.  While   courts   should   give   no    countenance    to 

■  Clark  V.  Hallock,  16  Wend.  607.  "  Alexander  v.  Hoyt,  7  Wend.  89. 

*  There  is  no  reqiuremeut  of  law  that  compels  a  person  to  apply  for  the 
abatement  of  a  tax  that  is  assessed  without  authority  (Osgood  v.  Blake,  1  Fost. 
550).  And  where  a  person  whose  property  has  been  sold  for  taxes  under  a  void 
warrant,  or  for  an  illegal  tax,  gives  a  receipt  for  the  balance  after  payment  of 
the  tax  and  expenses,  he  does  not  therebr  waive  the  trespass  (Westfall  v.  Pres- 
ton, 49  N.  Y.  B49).  Where  persons  acting  as  assessors  have  been  duly  chosen 
and  qualified  to  execute  that  office,  and  the  sum  assessed  has  been  legally  or- 
dered to  be  assessed,  if  the  assessment  be  made,  and  the  warrant  of  collection  be 
issued  by  them,  or  a  major  part  of  them,  in  due  form  of  law,  and  the  poll  and 
estate  of  the  party  complaining  of  the  assessment  be  legally  taxable,  he  cannot 
maintain  an  action  against  them  as  trespassers  for  any  mistake  or  error  in  the 
exercise  of  their  discretion  (Dillingham  v.  Snow,  5  Mass.  547 ;  Little  v.  Green- 
leaf,  7  lb.  236).  In  Sanford  v.  Dick  (15  Conn.  447),  which  was  an  action  of 
trespass  for  taking  certain  personal  property  belonging  to  the  plaintiS"  for  taxes, 
exceptions  taken  to  the  validity  of  the  rate  bill  proceeded  upon  the  ground  that 
although  the  officers  engaged  in  the  levying  of  taxes  had  confined  themselves 
within  the  limits  of  their  jurisdiction,  yet  that  the  taxes  laid  were  all  void  on 
account  of  omissions  and  mistakes.  The  court  remarked  that  such  a  principle 
was  not  admissible,  and  if  recognized  would  make  void  all  the  taxes  in  the  State. 


§  508.  LIABILITY   OF   COLLECTOR  OF   TAXES.  499 

frivolous  objections  on  the  part  of  the  tax  payer,  and  render 
all  proper  aid  in  carrying  out  the  law,  they  ought  to  see  that  the 
rights  of  the  citizen  are  not  improperly  invaded,  or  his  prop- 
erty taken  without  authority.^  *  Where,  in  an  action  against 
a  tax  collector  for  taking  and  carrying  away  the  plaintiff's 
cattle,  there  was  no  evidence  that  the  defendant  took  the 
oath  of  office  as  collector,  it  was  held  that,  as  he  had  no  legal 
authority  to  seize  the  plaintiff's  goods  for  taxes,  the  action 
must  be  sustained,  though  the  plaintiff  was  not  entitled  to 
recover  the  full  value  of  the  property  taken,  but  only  dam- 


'  Osgood  V.  Blake,  1  Fost.  550. 

*  In  Flanders  v.  Cross,  10  Cush.  514,  the  trespass  alleged  was  the  entry  by 
the  defendant,  into  the  plaintiff's  building,  under  claim  of  right,  as  the  pur- 
chaser of  it,  at  a  collector's  sale,  for  taxes.  The  defendant  denied  that  trespass 
lay  in  such  a  case,  because  he  said  that  he  purchased  in  good  faith  of  a  person 
authorized  to  sell,  and  because  he  bought  of  an  executive  officer  acting  in  pur- 
suance of  law.  The  building  was  erected  by  the  plaintiff,  with  permission,  on 
the  ground  of  another  person,  the  plaintiff  living  in  another  8tate.  The  prop- 
erty was  assessed  to  the  plaintiff,  by  name,  as  the  real  estate  of  a  non-resident, 
and  was  advertised  as  such  upon  the  tax  not  being  paid.  Afterward,  however, 
the  collector  changing  his  views  proceeded  to  sell  the  building  as  personal  prop- 
erty, and  thus  it  came  into  the  hands  of  the  defendant.  It  was  held  that,  as  the 
building  was  sold  as  personal  estate,  though  not  assessed  as  such,  and  not  sus- 
ceptible of  being  so  assessed  to  the  plaintiff,  the  sale  was  without  law  and  a  nul- 
lity;  that  the  entry  of  the  defendant  on  the  plaintiff  was  consequently  tortious, 
and  there  must  be  judgment  against  him  for  damages.  The  court  said:  '"Was 
the  property  here  to  be  considered  as  real  estate,  for  the  purpose  of  taxation,  or 
as  personal?  The  language  of  the  statute  would  seem  to  make  it  the  former. 
'Real  estate,'  it  says,  'shall,  for  the  purpose  of  taxation,  be  construed  to  include 
all  lands  within  the  State,  and  all  buildings  and  other  things  erected  on,  or  af- 
fixed to  the  same.'  In  the  case  of  such  property,  if  there  be  division  of  interests 
as  between  landlord  and  tenant,  the  statute  provides  the  remedy.  But  there 
is  no  power  in  the  collector  to  divide  the  property,  to  levy  on  the  building  severed 
from  the  land,  as  divisible  parts  of  the  same  piece  of  real  estate.  On  the  other 
hand,  certain  it  is,  that  such  property  is  or  may  be  personal  estate,  at  least  be- 
tween the  landlord  and  the  ground  tenant,  if  they  so  agree.  However,  this  may  be, 
it  was  necessary  for  the  town  assessors,  in  the  first  place,  to  elect  which  of  the 
two  constructions  to  adopt.  They  chose  to  consider  it  non-resident  real  estate, 
and  that  election  drew  after  it  the  necessary  consequence  of  dealing  with  it  as 
real  estate  throughout  all  the  process  of  the  collection  of  the  tax.  Instead  of 
which,  in  the  sale,  the  assumed  premises  of  the  tax  were  abandoned,  and  it  was 
put  up  as  personal  estate.  If  it  was  personal  estate,  then  it  was  not  taxable 
in  Lawrence.  As  personalty  it  was  taxable  in  Manchester  where  the  proprietor 
of  it  resided.  It  is  no  answer  to  this  to  say  that  the  proprietor  lived  in  another 
State.  We  tax  a  ship  to  the  owner  in  Salem,  although  the  ship  never  was  at 
Salem;  and  it  cannot  be  pretended  that  the  assessors  of  Boston  may  assess  there 
a  ship  which  happens  to  be  lying  at  the  wharf,  or  oven  a  bale  of  goods  in  store, 
when  the  ship  or  the  goods  are  the  property  of  a  merchant  of  New  York.  The 
only  exception  to  the  rule,  is,  where  the  foreign  owner  of  goods  hires  or  occujiiea 
a  store,  shop,  or  wharf  within  tlie  State.  But  this  exception  is  of  no  pertinency 
to  the  present  case  "  (citing  Rev.  Sts.  of  Mass.  ch.  7,  sects.  2,  8,  10;  Marcy  v. 
Darling,  8  Pick.  283;  Iluckins  v.  City  of  Boston,  4  Cush.  543). 


500  TAKING  PERSONAL  PROPERTY  BY  OFFICER.  §  509, 

ages  commensurate  with  tlie  injury.^  And  wliere  the  statute 
did  not  expressly  provide  that  any  one  should  be  eligible  to 
the  office  of  collector  of  a  school  district  except  a  resident  of 
the  district,  but  there  were  provisions  in  the  act  on  the  sub- 
ject from  which  the  fact  and  propriety  of  such  residence 
seemed  to  be  implied  on  the  part  of  the  legislature,  it  was 
held,  that  if  the  electors  of  the  district  should  confer  the 
appointment  upon  a  non-resident,  he  would  be  an  officer  de 
facto^  so  that  his  official  acts  would  not  make  him  a  trespasser, 
although  perhaps  he  might  be  ousted  from  his  office.^ 

§  509.  The  authority  to  assess  and  collect  taxes  being 
wholly  derived  from  the  statute,  the  collector  must  act 
strictly  within  its  provisions,  and  there  must  have  been  a 
legal  tax  to  which  the  party  taxed  was  liable.^  Without  a 
warrant,  a  tax  collector  becomes  a  trespasser  as  soon  as  he 
meddles  with  the  property  of  a  tax  payer.  There  must  also 
be  a  law  authorizing  the  issuing  of  a  warrant ;  and  some 
person  be  appointed  to  issue  it ;  and  it  must  conform  to  the 
statute  authorizing  it,  and  be  issued  by  the  person  designated 
by  law,  or  it  is  no  protection  to  the  collector.^  When  the 
warrant  is  good  on  its  face,  sufficient  in  point  of  form,  and 
the  assessors  have  jurisdiction  of  the  subject,  the  collector  is 
not  liable  for  its  due  execution.  But  a  warrant  bad  on  its 
face,  furnishes  no  protection  to  him.^  Clark  v.  Bragdon  ^ 
was  an  action  of  trespass  brought  by  Wm.  Clark,  Amos 
Clark,  and  John  Lamprey,  against  a  collector  of  taxes  for 
taking  and  carrying  away  wood,  belonging  to  the  plaintiffs, 
to  satisfy  a  tax.  The  entiy  uj^on  the  tax  list,  which  the  de- 
fendant set  forth  in  his  plea,  as  that  under  which  he  took  the 
property,  was  Wm.  Clark  "  et  ally  The  names  of  Amos 
Clark  and  John  Lamprey  were  not  on  the  list,  nor  was  there 
any  description  of  them  in  the  warrant,  or  on  the  list.  The 
court  said  :    "  The  description  of  the  plaintiffs  on  the  list, 

^  Cavis  V.  Robertson,  9  jST.  Hamp.  524,  ■  Ring  v.  Grout,  7  Wend.  341. 

^  Cloutman  t.  Pike,  7  X.  Hamp.  209. 

*  Pearce  v.  Torrence,  2  Grant,  82 ;  Stephens  v.  Wilkins,  6  Barr.  260. 

=■  Eames  v.  Johnson,  4  Allen,  383.  "  87  N.  Hamp.  562. 


§  510.  LIABILITY   OF   COLLECTOR   OF   TAXES.  501 

in  this  case,  was  entirely  insufficient,  and  the  warrant  was 
consequently  illegal  and  void  as  to  them.  '  Et  all '  may  as 
well  mean  any  other  persons  as  John  Lamprey  and  Amos 
Clark.  Used  as  it  was,  it  was  unintelligible.  It  gave  no 
description  whatever  of  the  plaintiffs,  and  no  authority  to 
take  their  property ;  and  the  warrant  afforded  no  protection 
to  the  defendant. " 

§  510.  If  a  tax  is  illegal,  for  want  of  power  in  the  town 
to  vote  it,  as  if  voted  for  a  purpose  wholly  foreign  to  the 
objects  for  which  towns  are  created,  or  for  a  purpose  other 
than  those  for  which  towns  are  empowered  by  law  to  vote 
and  assess  a  tax,  the  collector  cannot  justify  the  taking  of 
property.^  And  an  action  of  trespass  may  be  maintained 
against  a  collector  of  military  fines,  who  distrains  for  a  fine 
imposed  by  a  court  martial,  in  a  case  where  it  has  no  juris- 
diction.^ * 


'  Briggs  V.  Whipple,  7  Vt.  15.  '  Wise  v.  Withers,  3  Cranch,  331. 

*  Suydam  v.  Keyes,  13  Johns.  444,  was  an  action  of  trespass  for  taking  four 
barrels  of  flour  from  the  mill  of  the  plaintiff  in  the  town  of  Munroe,  Orange 
county,  New  York.  The  defense  was  a  justification  by  virtue  of  a  warrant 
under  the  hands  and  seals  of  the  trustees  of  the  school  district  (which  included 
the  mills  of  the  plaintiff)  for  collecting  a  tax  which  had  been  voted  by  the  free- 
holders and  inhabitants  of  the  district,  for  the  purpose  of  building  a  school 
house  according  to  the  provisions  of  the  8th  section  of  the  act  of  New  York, 
by  which  the  freeholders  and  taxable  inhabitants  of  the  district  were  authorized 
to  vote  a  tax  for  that  purpose,  "(??i  the  resident  inhabitants  of  such  district,"  and 
to  choose  three  trustees,  who  were  required  to  make  a  rate  bill  or  tax  list  which 
should  raise  the  sum  voted  on  all  the  taxable  inhabitants  of  the  district,  agree- 
ably to  the  levy  on  which  the  town  tax  was  levied  the  preceding  year,  and  annex 
to  sucli  tax  list  or  rate  bill  a  warrant  to  the  collector  of  the  district  to  collect 
the  tax  accordingly.  In  this  case,  the  amount  of  the  tax  was  regularly  voted 
by  the  freeholders  and  inhabitants  of  the  district;  and  the  trustees  made  out  a 
warrant  to  the  defendant  as  collector,  with  a  rate  bill  or  tax  list  annexed,  in 
which  the  plaintiff  was  set  down  as  an  inhabitant  of  the  district.  It  was  ad- 
mitted that  the  plaintiff  was  not  a  resident  of  the  district,  and  the  tax  was 
therefore  illegally  imposed.  The  main  question  in  the  case,  was,  whether  the 
collector,  who  executed  the  warrant,  could  claim  protection  under  it.  Piatt,  J., 
in  delivering  the  opinion  of  the  Supreme  Court,  said:  "I  incline  to  the  opinion 
that  the  collector  (as  well  as  the  trustees)  is  a  trespasser.  The  authority  of  the 
trustees  was  special  and  limited,  and  in  assuming  a  right  to  tax  the  plaintiff, 
they  exceeded  the  powers  vested  in  them  by  law.  The  rule  is  wisely  settled  that 
in  such  cases,  the  subordinate  officer  is  bound  to  see  that  he  acts  within  the  scope 
of  the  legal  powers  of  those  who  command  him.  Experience  has  shown  that 
the  safety  of  private  rights  will  not  admit  of  a  relaxation  of  this  rule,  and  the 
uniform  current  of  English  authorities  has  supported  it  with  jealous  caution. 
The  principle  is  sometimes  harsh  in  its  application,  but  in  order  to  be  efficacious 
.and  certain,  it  is  necessary  that  it  should  be  uniform.     Lawless  jiower  is  never 


502  TAKING    PERSONAL    PROPERTY  BY   OFFICER.  §511. 

§  511.  The  question  as  to  how  far  a  collector  of  taxes  is 
protected  by  his  warrant,  has  been  decided  differently  in  dif- 
ferent States.  In  New  York,  in  an  action  against  the  col- 
lector of  a  school  district,  for  seizing  property  for  a  tax  under 
a  warrant  regular  on  its  face,  the  plaintiff  was  not  allowed  to 
show  that  the  forms  prescribed  by  law,  in  organizing  the 
district,  had  not  been  observed.^  *  In  Massachusetts,  some 
of  the  cases  have  intimated  that,  if  the  collector  has  a  regular 
warrant  he  will  be  protected.^  In  Upton  v.  Holden  ^  it  was 
held  that  a  warrant,  legal  on  its  face,  issued  by  commission- 
ers acting  under  the  statute  regulating  "  proceedings  for  im- 

80  dangerous  as  when  exerted  by  public  oiBcers  according  to  the  forms  of  law. 
The  remedy  for  such  abuses,  ought  to  be  direct  and  ample.  It  is,  therefore,  in- 
sufficient to  allow  an  action  against  the  trustees  only.  They  may  be  insolvent, 
or  beyond  the  reach  of  process,  while  the  officer,  who  is  the  immediate  trespasser, 
is  fully  able  to  respond  "  (See  Harrison  v.  Bulcock,  1  H.  Black.  68 ;  Mayor  v. 
Knowler,  4  Taunt.  635,  cited  in  the  foregoing  as  analogous). 

Henderson  v.  Brown,  1  Caines,  92,  is  distinguishable  from  the  foregoing. 
That  was  an  action  of  trespass  against  a  collector  for  levying  a  distress  for  a 
tax  on  a  theater  in  New  York,  which  had  been  assessed  as  a  dwelling-house 
when  it  ought  to  have  been  assessed  as  land  with  the  theatre  upon  it..  There 
was  no  want  of  jurisdiction  or  excess  of  jurisdiction.  It  was  an  erroneous  and 
not  a  void  assessment,  and  therefore  the  collector  was  justified. 

^  Reynolds  v.  Moore,  9  Wend.  35 ;  and  see  Henderson  v.  Brown,  1  Caines, 
92;  Suydam  v.  Keyes,  13  Johns.  444;  Savacool  v.  Boughton,  5  Wend.  170; 
Wilcox  v.  Smith,  lb.  281 ;  McCoy  v.  Curtice,  9  lb.  17.      ' 

=  Martin  v.  Mansfield,  3  Mass.  419;  Stetson  v.  Kempton,  13  lb.  272;  Thaxter 
V.  Jones,  4  lb.  570;  Wells  v.  Battelle,  11  lb.  477. 

'  5  Mete.  360. 

*  Henderson  v.  Brown,  supra,  was  an  action  of  trespass  for  making  a  distress 
as  collector  for  a  tax.  It  appeared  that  the  plaintiff  was  the  owner  of  a  theater 
in  the  city  of  New  York,  and  that  it  was  assessed  and  valued  as  a  dwelling- 
house  under  the  act  of  Congress  to  provide  for  the  valuation  of  lands  and 
dwelling-houses,  and  was  taxed  as  such  in  pursuance  of  the  act  to  lay  and  collect 
a  direct  tax  within  the  United  States.  Defendant,  for  non-payment  of  the  tax, 
distrained  in  a  regular  manner.  The  theater  was  conceded  not  to  be  a  dwelling- 
house,  within  the  intent  of  these  acts  of  Congress,  and  it  did  not  appear  that  it 
was  ever  occupied  as  such.  Held  that,  as  the  assessors  had  jurisdiction  over 
the  subject-matter,  and  their  mistake  in  considering  a  theater  as  a  dwelling- 
house  was  an  error  of  judgment,  an  action  would  not  lie  against  the  collector 
(Thompson,  J.  and  Radclift',  J.,  dissenting). 

Where  the  limits  or  boundaries  of  a  school  district  were  not  sufficiently  de- 
scribed in  the  written  order  given  by  a  school  commissioner  to  a  person  to  notify 
the  inhabitants  of  the  district  of  the  time  and  place  of  holding  a  school  meet- 
ing, it  was  held  that  it  did  not  render  all  the  acts  of  the  meeting  void,  so  that 
officers  chosen  thereat  would  be  liable  in  an  action  of  trespass  for  any  of 
their  official  acts  (Ring  v.  Grout,  7  Wend.  341). 

Trespass  will  not  lie  against  a  collector  of  internal  revenue  for  the  seizure  of 
goods  which  it  afterward  appears  were  not  liable  to  seizure,  if  as  such  collector 
he  had  good  cause  to  believe  and  did  believe  that  the  property  was  forfeited  to 
the  United  States  (Averill  v.  Smith,  17  Wal.  82). 


§  511.  LIABILITY  OF    COLLECTOR  OF   TAXES.  503 

proving  meadows,"  wLicli  directed  a  collector  to  collect  as- 
sessments made  by  them  on  tlie  proprietors  of  meadows, 
would  protect  the  collector  in  seizing  and  selling  the  property 
of  such  proprietors  pursuant  to  his  warrant,  although  the 
commissioners  were  not  authorized  to  make  the  assessments. 
In  Vermont,  a  collector  of  taxes  cannot  justify  the  taking  of 
property  merely  by  showing  a  regular  tax  bill  and  warrant, 
but  must  prove  that  all  the  previous  proceedings  were  legal^ 
It  was  held  in  an  early  case,  in  that  State,  that  the  collector 
of  a  school  district  tax  was  liable  in  trespass  for  seizing 
property  by  virtue  of  his  warrant  and  rate  bill,  if  the  dis- 
trict had  no  power  to  grant  the  tax,  or  there  had  been  any 
illegality  in  voting  it,  although  the  rate  bill  and  warrant 
were  regular  on  their  face.^  *  The  same  ground  had  previously 
been  taken  by  Chipman,  C.  J.,  in  Wilcox  v.  Sherwin ;  ^  but 
his  associates  on  the  bench  did  not  coincide.  His  view  was, 
however,  adopted  in  Bates  v.  Hazeltine,*  where  it  was  held 
that  the  collector  of  a  school  district  tax  must  not  only  show 
his  rate  bill  and  warrant,  but  also  the  organization  of  the 
district,  the  appointment  of  the  committee,  and  the  vote  lay- 
ing the  tax ;  and  the  court  remarked  that  if  the  tax  was  not 


'  Collamer  v.  Drary,  16  Vt.  574;  Downing  v.  Roberts,  21  lb.  441. 

"  Waters  v.  Daines,  4  Vt.  601.  =1  D.  Chip.  72. 

•       -  1  Vt.  81. 

*  Waters  v.  Daines,  si'pra,  was  an  action  for  seizing  and  carrying  away  the 
plaintiffs  sheep  for  a  school  district  tax.  No  objection  was  made  to  the  warrant 
and  rate  bill,  on  account  of  any  irregularity  apparent  on  their  face.  But  it  was 
urged  that  the  tax  was  illegal,  and  that,  therefore,  the  collector  was  liable.  The 
court  said :  ''  The  position  that  a  collector  of  taxes  is  accountable  in  an  action 
of  trespass,  when  there  is  a  want  of  power  in  the  town  or  district  granting  the 
tax,  or  where  there  is  any  illegality  in  voting  the  same,  has  been  considered  as 
too  well  settled  to  be  questioned  at  this  time.  Unless  such  action  could  be  main- 
tained, the  person  injured  would  be  either  without  any  remedy,  or  any  but  one 
wholly  inadequate.  No  action  can  be  maintained  against  the  corporation,  ex- 
cept to  recover  back  the  money  wliich  they  have  wrougfully  received,  and  this, 
it  will  be  seen,  would  go  but  little  way  in  compensating  a  person  whose  prop- 
erty has  been  sacrificed  by  a  public  sale,  or  whose  body  has  been  imprisoned  to 
compel  the  payment  of  a  sum  of  money  illegally  demanded  of  him.  Every  one 
who  is  injured  in  this  way,  should  be  permitted  to  have  recourse  immediately  to 
the  person  who  takes  his  property,  or  imprisons  him  against  his  will,  to  recover 
such  damages  as  he  has  sustained,  leaving  that  person,  if  he  fails  to  make  out 
a  justification  on  account  of  the  illegality  of  those  who  set  liim  to  work,  to  ob- 
tain his  recompense  of  the  community  of  which  he  is  a  member,  and  as  whose 
officer,  and  by  whose  direction,  he  committed  the  injury  complained  of." 


."504      TAKING  PERSONAL  TROPERTY  BY  OFFICER.     §  512. 

legally  imposed,  the  collector  had  no  right  to  collect  it.  lu 
New  Hampshire,  the  collector  of  taxes  may  justify  a  seizure 
of  goods,  or  the  arrest  of  the  body  under  his  warrant,  witt- 
«out  regard  to  any  defect  in  the  previous  proceedings  of  tlie 
town  or  the  selectmen.  If  his  own  acts  are  reo-ular,  sucli 
seizure  or  arrest  must,  as  to  him,  be  regarded  as  lawful.  In 
case  of  an  illegal  assessment,  the  remedy  is  against  the  select- 
men who  issue  the  warrant,  and  may  take  the  form  of  tres- 
pass for  such  arrest  or  seizure.  By  the  statute,  the  officer  is 
put  upon  the  footing  of  a  sheriif  acting  under  process  from 
a  court  of  competent  jurisdiction,  which  will  be  a  justification, 
though  the  process  be  erroneously  issued.^  * 

§  512.  It  is  important  to  the  rights  of  property,  that  reg- 
ulations authorizing  the  seizure  and  sale  of  chattels  without 
the  consent  of  the  owner,  should  be  strictly  complied  with. 
The  common  law  in  no  case  permitted  the  immediate  sale  of 
a  distress ;  but  only  after  the  goods  had  been  kept  a  reason- 
able time.  What  is  to  be  deemed  a  reasonable  time,  is  a 
question  of  law.  A  distress  ought  also  to  be  sold  for  the 
best  price  it  will  bring.  It  may  be  sold  at  private  sale,  if  the 
full  value  can  l)e  obtained,  unless  a  diiferent  mode  is  pro- 
vided by  statute ;  otherwise  it  should  be  sold  at  auction,  due 
notice  of  the  time  and  place  being  first  given.  -  f 


'  Blanchard  v.  Goss,  2  N.  Hamp.  401  ;  State  v.  Weed,  21  lb.  262 ;  Rice  v. 
Wadsworth,  27  lb.  104;  Henry  v.  Sargeant,  13  lb.  321;  Kelley  v.  Noyes,  43  lb. 
209;  but  see  Osgood  v.  Blake,' 1  Fost.  5o0. 

-  Blake  v.  Johnson,  1  N.  Hamp.  91. 

*  In  iMichigan,  it  has  been  held  that,  as  the  supervisor  of  taxes  cannot  notice 
or  except  individual  cases,  but  is  compelled  by  law.  when  the  roll  has  come  to 
him  properly  certified,  to  issue  a  general  warrant,  unless  there  be  some  defect 
■which  renders  the  whole  roll  void,  he  cannot  be  made  liable  as  a  trespasser  by 
reason  of  any  errors  or  defects  in  the  description  of  real  estate  on  the  assessment 
roll  (Clark  v.  Axford,  5  Mich.  182). 

t  Where  a  collector  of  duties  under  an  act  of  Congress  made  a  distress  and 
sold  the  same  at  less  than  half  the  value  at  auction,  in  two  hours  after  the  seizure, 
without  giving  public  notice  of  the  time  and  place  of  sale,  it  was  held  that  he 
had  conducted  so  illegally  as  to  make  himself  a  trespasser  ab  initio  (Blake  v. 
Johnson,  siq>ra).  In  Massachusetts  it  has  been  held  that  if  the  collector  sell 
goods  for  taxes  after  the  expiration  of  the  time  prescribed  by  the  statute,  he  will 
be  a  trespasser  ah  initio  (Pierce  v.  Benjamin,  14  Pick.  356).  But  in  New  Hamp- 
shire, the  keeping  of  goods  by  a  collector  beyond  the  time  designated  by  the 
-statute  for  their  sale,  has  been  deemed  a  mere  non-feasance,  for  which  he  will 


§§  513,  514.     LIABILITY    OF   COLLECTOR  OF   TAXES.  505 

§  513.  Where  the  collector  purchases  at  his  own  sale,  the 
sale  is  not  void,  but  only  voidable  at  the  election  of  the 
owner  of  the  goods.  In  Pierce  v.  Benjamin,  ^  the  defendant, 
who  was  collector  of  taxes,  justified  the  taking  of  the  goods 
in  question  under  a  warrant  from  the  assessors  of  the  town, 
and  a  seizure  and  sale  of  the  same  for  the  payment  of  the 
plaintiff's  taxes.  It  appeared  that  the  defendant  was  the 
highest  bidder  and  purchaser  at  his  own  auction.  The  court 
remarked  that  this  conduct  of  the  defendant  was  clearly  a 
violation  of  his  official  duty ;  that  such  a  practice  would  lead 
to  fraud  in  the  publication  of  notices  and  the  selection  of 
places  of  sale ;  that  the  respective  duties  of  buyer  and  seller 
were  incompatible  with  each  other,  and  no  person,  in  what- 
ever capacity  he  might  undertake  to  act,  could  rightfully 
sustain  both  characters ;  but  that  a  sale  by  an  officer  or 
other  trustee  to  himself  was  not  absolutely  void,  the  cestui  que 
trust  having  an  option  to  affirm  or  avoid  it,  as  he  should 
judge  most  advantageous  to  himself;  and  that  as  the  plaintiff 
had  made  no  election  to  annul  the  sale  by  a  demand  of  the 
property,  or  otherwise,  before  the  commencement  of  the 
action,  it  might  well  be  doubted  whether  uj)on  this  ground 
he  could  recover. 

§  514.  Where  the  owner  of  personal  property  sold  for 
taxes,  buys  it  in  at  the  ailction  sale  himself,  and  appropriates 
it  to  his  own  use,  in  an  action  of  trespass  brought  by  the 
owner  against  the  tax  collector  for  the  wrongful  taking,  the 
plaintiff  will  be  entitled  to  recover  only  what  he  was  com- 
pelled to  pay  for  the  property ;  that  being  the  extent  of  the 
injury  he  has  sustained  in  consequence  of  the  act  of  the  de- 


not  be  lialjle,  though  he  sell  afterward  (Factory  v.  McConihe,  7  N.  Hamp,  309 ; 
Ordway  v.  Ferrin,  3  lb.  G9).  Where  the  collector,  having  seized  more  goods 
than  sufficient  to  pay  the  tax  and  expenses  of  sale,  after  selling  enough  for  that 
purpose,  proceeds  further  and  sells  all  the  rest,  he  will  not  thereby  become  a 
trespasser  rib  initio,  but  only  lial)le  for  so  much  as  was  sold  in  excess  of  the  re- 
quirements of  law  (Seekins  v.  Goodale,  Gl  Maine.  400.  But  see  Williamson  v. 
Dow,  32  II).  559). 
'   14  Pick.  356. 


506  TAKING    PERSONAL   PROPERTY   BY   OFFICER.  §  514. 

fendant.  ^  If  lie  disaffirm  the  sale,  and  treat  the  defendant 
as  a  trespasser,  he  will  be  concluded  by  his  election,  and 
cannot  afterward  affirm  the  proceedings  for  the  purpose  of 
recovering  the  balance  of  the  purchase  money  beyond  the 
amount  of  the  tax.  ^ 


'  Hurlburt  v.  Green,  41  Vt.  490 ;  Baker  v.  Freeman,  9  Wend.  36. 
=  Clark  V.  Hallock,  16  Wend.  GOV. 


CHAPTER    IV. 

WHO    MAY    MAINTAIN    THE   ACTION. 

1.  General  rule. 

2.  In  case  of  goods  taken  from  officer. 

3.  Where  goods  are  taken  from  a  servant. 

4.  In  the  case  of  a  corporation. 

5.  Where  the  goods  belonged  to  a  person  deceased. 

6.  Where  property  is  mortgaged. 

7.  Where  the  owner  has  parted  with  his  right  of  possession. 

8.  In  case  of  bailment. 

9.  Where  there  has  been  a  conditional  sale. 

10.  In  case  of  agency. 

11.  Tenants  in  common. 

13.  Where  possession  of  goods  is  obtained  by  fraud. 

1.   General  rule. 

§  515.  The  possessor  of  personal  property  may  maintain 
trespass  against  a  mere  wrong-doer  without  showing  the  ex- 
tent of  his  right ;  possession  itself  being  a  sufficient  title 
against  all  the  world  except  the  true  owner.  ^  Therefore  a 
person  who  has  the  possession  of  goods  under  a  void  assign- 
ment with  the  assent  of  the  owner,  may  maintain  an  action 
of  trespass  against  one  who  takes  them  without  right.  ^ 
Where  in  an  action  for  taking  and  carrying  away  a  chaise 
and  harness,  it  appeared  that  the  property  was  obtained  by 
the  plaintiffs,  who  were  heirs  at  law^  of  an  estate,  by  giving 
in  exchange  for  it  another  chaise  belonging  to  the  estate,  and 
paying  the  difference  in  value  between  them  in  money  of  the 
estate ;  and  that  the  defendant,  a  collector  of  taxes,  sold  the 
chaise  for  a  tax  which  was  illegally  assessed ;  it  was  held 

•  Potter  V.  Washburn,  13  Vt.  558;  Odiome  v.  Colley,  2  N.  Hamp.  66;  Out- 
calt  V.  Burling,  1  Butcher,  443 ;  Armory  v.  Belamirie,  1  Str.  505 ;  Hoyt  v.  Gel- 
ston.  13  Johns.  141,  afif'd  on  error,  lb.  561;  Brown  v.  Ware,  25  Maine,  411; 
Jones  V.  M'Neil,  2  Bailey,  466;  Harrison  v.  Bavis,  2  Stew.  350;  Bemick  v.  Chap- 
man, 11  Johns.  132;  Carson  v.  Prater,  0  Cold.  Tenn.  565. 

^  Barker  v.  Chase,  24  Maine,  230 ;  Harrison  v.  Bavis,  2  Stew.  350. 


508  WHO   MAY  MAINTAIN    THE   ACTION.  §  516. 

that  the  plaintiffs  were  entitled  to  recover.  As  the  tax  was 
illegally  assessed,  the  act  of  the  defendant  in  taking  the  prop- 
erty out  of  the  possession  of  the  plaintiffs  was  wrongful.  As 
against  him  the  possession  of  the  plaintiffs  was  a  sufficient 
title ;  and  as  lie  had  not  shown  any  right  to  interfere,  they 
were  not  bound  to  go  beyond  the  evidence  of  title  which 
their  j)ossession  furnished.^  Where  a  master  in  chancery, 
without  jurisdiction  or  authority,  appointed  a  receiver  of 
goods,  but  tlie  papers  were  regularly  issued  under  the  seal 
of  the  court,  it  was  held  that  the  receiver  might  defend  an 
action  of  trespass  for  the  goods.  ^  In  an  action  for  shooting 
and  killing  a  mare,  it  appeared  that  the  plaintiff'  took  up  the 
mare,  which  was  straying,  and  kept  and  worked  her  a  year 
or  more,  and  it  was  held  that  he  was  entitled  to  recover; 
possession,  and  not  title,  being  the  basis  of  the  action.^  A 
similar  decision  was  rendered  in  the  case  of  sheep  in  the  cus- 
tody of  a  person  as  estrays.  ^  In  an  action  of  trespass  for 
taking  and  carrying  away  personal  property  from  the  pos- 
session of  the  plaintiff",  he  described  himself  as  trustee  of  his 
wife.  It  was  held  that  the  plaintift^'s  possession  was  suffi- 
cient to  enable  him  to  maintain  the  action,  and  that  the  alle- 
gations that  he  was  his  wife's  trustee,  and  that  the  property 
was  hers,  might  be  rejected  as  sui'plusage.  ^  * 

§  516.  When  the  property  of  a  bankrupt  has  become 
vested  in  his  assignees  they  may  maintain  an  action  for  its 
injury.^  If  an  injury  to  the  person  of  the  bankrupt  is  the 
consequence  of  the  injury  to  the  goods,  the  injury  to  the  latter 
is  the  primary  and  substantial  cause  of  action,  and  such  right 


^  Pickering  v.  Coleman,  12  N.  Hamp.  148. 

-  Brush  V.  Blanchard,  19  111.  31.  '  Boston  v.  Neat,  13  Mo.  135. 

*  Hendricks  v.  Decker,  35  Barb.  398.  '  Limbert  v.  Fenn,  33  Conn.  158. 
•^  Mitchell  V.  Hughes,  6  Bing.  689. 

*  Certain  land  having  been  sold  by  an  administrator,  the  vendee  took  pos- 
session and  sowed  it  with  wheat,  but  linding  that  he  had  no  title  to  the  land, 
the  contract  was  rescinded,  and  he  left.  The  administrator  then  sold  the  land 
to  another  person,  who  put  a  tenant  on  it.  The  first  purchaser  afterward  cut  the 
wheat,  and  the  second  purchaser  carried  it  away.  It  was  held  that  the  first  pur- 
chaser by  cutting  the  wheat  became  possessed  of  it,  and  that  he  could  maintain 
trespass  for  taking  it  (Algood  v.  Hutchius,  3  Murph.  496). 


§  517.  GENERAL    RULE.  509 

of  action  will  pass  to  the  assignees  as  part  of  tlie  personal 
estate.^  When  there  is  a  mixed  case  of  injury  to  the  person 
and  injury  to  the  proi3erty,  the  bankrupt  may  maintain  an 
action  for  the  personal  injury  sustained  by  him,  and  the  as- 
signees another  action  for  the  injury  done  to  the  property.^ 
If  the  property  remain  in  the  custody  of  the  bankrupt,  he 
may  maintain  an  action  for  the  wrongful  taking  of  it,  not- 
mthstanding  the  assignment.  Where  a  bankrupt  allege^  in 
his  declaration  that  the  defendant  had  seized  his  goods  under 
a  false  and  pretended  claim  of  right ;  that  he  was  thereby 
much  annoyed  and  prejudiced  in  his  business,  and  believed 
to  be  insolvent ;  and  that  by  means  of  the  premises,  certain 
of  his  lodgers  being  induced  to  believe  that  he  was  in  embar- 
rassed circumstances,  and  that  the  defendants  were  entitled 
to  seize  the  goods  for  a  debt,  quitted  the  house,  and  the  de- 
claration then  claimed  special  damages,  it  was  held  that  a 
plea  of  the  bankruptcy  of  the  plaintiff  and  of  the  transfer  of 
the  causes  of  action  to  the  assignees  was  no  answer  to  the 
plaintiff's  claim.^ 

§  517.  The  mere  2)ossessor  of  goods  cannot,  however, 
maintain  the  action  when  a  paramount  right  is  shown  in  a 
third  person  with  whom  the  defendant  connects  himself.* 
Hammond  v.  Plimpton  ^  was  an  action  of  trespass  for  wood. 
The  plaintiff  claimed  title  to  the  wood  by  purchase  upon  an 
execution  against  one  Parkhurst.  The  defendant  claimed  to 
own  tlie  same  wood  by  means  of  purchase  of  one  Ingraham. 
It  appeared  that  Ingraham  and  Parkhurst  entered  into  an 
agreement  for  cutting  and  drawing  a  quantity  of  wood.  In- 
graham was  to  cut  the  Avood  of  a  particular  size,  and  Park- 
hurst to  pay  him  a  given  sum  per  cord  for  cutting  and  draw- 
ing, and  the  contract  provided  that  "  Ingraham  should  own 
and  possess  the  wood  until  he  was  paid  for  cutting  and  draw- 
ing."    The  wood  having  been  cut  and  drawn  by  Ingraham 

'  Drake  v.  Beckham,  11  M.  &  W.  315;  Hodgson  v.   Sidney,  L.  R.  1  Exch. 
313. 

»  Rogers  v.  Spence,  12  CI.  &  ^in.  700.        =  Brewer  v.   Dew,  11  M.  &  W.  625. 
*  Hutchinson  v.  Lord,  1  Wis.  286.  '  30  Vt.  333. 


510  WHO   MAY   MAINTAIN   THE   ACTION.  §  518. 

under  the  contract,  and  piled  near  Parkliurst's  shop  in  the 
highway,  it  was  attached  and  sold  on  execution  against  Park- 
hurst  as  his  property,  and  purchased  at  the  sheriffs  sale  by 
the  plaintiff.  After  the  attachment,  and  before  the  sale,  the 
defendant  bought  the  wood  of  Ingraham,  then  piled  in  the 
highway,  but  did  not  remove  any  part  of  it  until  after  the 
sale  on  the  execution,  and  after  that  he  drew  away  some 
twenty-three  cords  of  it.  It  was  held,  that  as  Ingraham  had 
a  special  property  in  the  wood  under  his  agreement  with 
Parkhurst,  and  the  defendant  succeeded  to  the  rights  of  In- 
graham, the  plaintiff  could  not  recover. 

§  518.  Personal  property  taken  under  a  valid  writ  of 
attachment,  being  in  the  custody  of  the  law,  the  owner  can- 
not maintain  trespass  de  bonis  asportatis  either  against  the 
creditor  or  the  officer  for  attaching  the  same  under  a  subse- 
quent writ.*  In  an  action  of  trespass  it  appeared  that  an 
officer  had  previously  taken  the  goods  of  the  plaintiffs  into 
his  custody  on  a  writ  of  attachment  sued  out  by  a  stranger 
against  the  plaintiffs'  assignors.  In  this  the  defendant  had 
taken  no  part,  but  finding  the  goods  thus  in  the  hands  of  the 
officer,  under  color  of  right,  he  placed  another  writ  of  attach- 
ment against  the  assignors  in  the  officer's  hands,  and  directed 
him  to  hold  the  goods  for  the  security  of  his  own  debt,  to  be 
ascertained  by  judgment.  It  was  held  that  the  defendant,  in 
delivering  the  writ  to  the  officer,  had  not  inflicted  any  such 
injury  upon  the  plaintiffs,  nor  had  the  plaintiffs  any  such 
possession  of  the  goods  as  entitled  them  to  maintain  the  ac- 
tion.^ f 


'  Hunt  V.  Pratt,  7  R.  I.  283. 

*  It  has  been  held  that  it  makes  no  difference  in  such  case  whether  the  prop- 
erty belongs  to  the  debtor  or  a  third  person  (Ginsberg  v.  Pohl,  35  Md.  505). 

t  In  Hunt  V.  Pratt,  supra^  the  court  said:  "At  that  time  the  plaintiffs  had 
neither  the  actual  nor  constru»tive  possession  of  their  goods,  since  they  were  in 
the  hands  of  the  officer,  held  by  him  adversely  to  them,  wrongfully,  it  is  true, 
but  under  a  claim  of  right.  The  general  property  in  goods  draws  to  it  the 
possession  of  them,  when  unpossessed  by  others,  or  possessed  by  others  in  right 
of  the  general  owner.  But  how  in  any  sense  can  the  owner  of  goods  be  said  to 
possess  them,  when  they  are  actually  in  the  possession  of  another,  who  holds 
them  adversely  to  him  under  a  claim  of  right  ?    The  cases  cited  to  this  point  by 


§  519.  GENERAL    RULE.  511 

§  519.  An  averment  of  property  in  the  plaintiff  will  be 
maintained  by  evidence  of  actual  possession  coupled  v^ith  an 
interest,  though  the  absolute  property  is  in  a  third  party. ^ 
In  an  action  of  trespass  against  a  deputy  sheriff  for  attaching 
certain  machinery  and  cloths  as  the  property  of  a  woolen 
manufacturing  company,  it  appeared  that  the  plaintiff  had 
loaned  to  the  company  a  large  sum  of  money,  and  that  by 
mutual  agreement  between  the  company  and  the  plaintiff', 
the  latter,  in  order  to  secure  himeelf  for  his  advances,  had 
taken  possession  of  and  operated  the  factory,  carrying  on  the 
same  business  and  with  the  same  workmen ;  it  being  agreed 
that  he  should  run  the  factory  at  the  risk  and  on  account  of 
the  corporation,  until  he  was  paid.      It  was  held,  that  the 


the  plaintiffs  found  themselves  upon  the  text  of  Chitty,  who  in  his  work  on 
pleading,  p.  171,  says:  '  If  a  second  trespasser  takes  goods  out  of  the  custody  of 
the  first  trespasser,  the  owner  may  support  trespass  against  such  second  trespasser, 
his  act  not  being  excusable.'  The  reason  given  by  Chitty  is  certainly  a  good  one 
why  the  owner  should  maintain  an  action  against  the  second  trespasser,  but  none 
whatever  why  he  should  maintain  trespass.  The  authority  cited  by  him  is 
Siderfln,  438,  which  contains  one  of  many  reports  of  the  well  known  case  of 
Wilbraham  v.  Snow,  2  Saund.  47.  Now  the  only  point  decided,  or  even  men- 
tioned by  the  Court  of  King's  Bench  in  that  case,  is,  that  a  sheriff  has  such  a 
property  in  goods  seized  by  him  in  execution,  that  he  may  maintain  trespass  or 
trover  against  one  who  takes  and  carries  them  away,  and  converts  them  to  his 
own  use.  Siderfin's  note,  indeed,  is:  'If  A.  takes  my  goods,  and  then  B.  takes 
them  from  A.,  I  may  have  trespass  or  trover  against  the  one  or  the  other,  at  my 
election,  although  the  opinion  in  Croke  is  that  I  cannot  have  trespass  against  B.' 
This  might  well  be  the  opinion  in  Croke,  since  the  law  was  precisely  so  settled, 
as  appears  by  the  digests  and  reports  used  in  those  days.  But  however  this  may 
be,  in  the  case  at  bar  the  defendant  did  not  stand  in  the  plight  of  a  trespasser 
upon  the  oiBcer,  nor  did  he  take  the  goods  at  all,  but  simply  by  delivering  his 
writ  to  the  officer  directed  him  to  hold  the  goods  already  taken  by  the  officer 
upon  the  writ  of  another  for  his  (the  defendant's)  security,  and  this  the  officer 
did.  Now,  if  the  sheriff,  considered  as  having  obtained  the  goods  by  trespass, 
had  actually  delivered  them  to  the  defendant,  it  is  old  law,  from  the  Year  Books 
downward,  that  the  receiving  of  the  goods  from  him  by  the  defendant  could  not 
subject  the  latter  to  trespass  at  the  suit  of  the  general  owner.  If  the  actual  re- 
ceiving of  the  goods  by  the  defendant  from  the  sheriff,  when  he  knew  that  the 
sheriff  had  obtained  them  by  trespass,  would  not  constitute  the  defendant  a  tres- 
passer, provided  the  trespass  was  not  originally  committed  to  his  use,  or  for  his 
benefit,  how  much  less  will  the  act  of  the  defendant,  who  finding  the  officer  in 
the  quiet,  and  as  he  supposed,  lawful  possession  of  the  plaintiff's  goods,  merely* 
directed  him,  by  a  writ  of  attachment,  to  detain  them  for  the  security  of  his 
debt  against  another  whose  goods  he  was  advised  they  were.  It  would  be  new 
law  indeed  if  the  mere  unlawful  detainer  of  goods,  or  particijiation  in  such  an  act, 
amounted  to  that  forcible  invasion  of  the  owner's  possession  of  them  which  the 
law  denominates  a  trespass  "  (citing  Brooke  Abr.  Trespass,  pi.  358;  Rolle's  Abr. 
Trespass,  p.  556;  4  Inst.  317;  6  Com.  Dig.  Trespass,  G;  Wilson  v.  Barker,  i 
Barn.  &  Adolph.  614;  Wright  v.  Woolen,  7  Law  Times  R.  N.  S.  73). 
'  Outcalt  V.  Duriiug,  1  Dutcher,  443. 


512  WHO   MAY   MAINTAIN    THE  ACTION.  §  520. 

possession  of  tlie  plaintiff  was  coupled  with  an  interest  of 
wliich  he  could  not  be  deprived  either  by  the  company  or 
any  other  person,  except  on  the  terms  expressed  in  the  agree- 
ment between  him  and  the  company,  to  wit,  the  payment  of 
his  claim  ;  and  that  therefore  he  was  entitled  to  recover.^  A. 
having  sold  to  B.  43,000  bricks,  to  be  taken  out  of  an  un- 
finished kiln  containing  a  larger  quantity,  delivered  posses- 
sion of  the  brick  yard  to  B.,  and  agreed  with  him  to  burn 
the  kiln,  which  he  accordingly  did,  and  then  executed  to  C. 
a  bill  of  sale  of  all  the  bricks  in  the  kiln.  It  was  held,  that 
B.  had  a  right  to  take  the  43,000  bricks,  although  they  were 
not  separated  from  the  residue,  and  that  C.  could  not  main- 
tain trespass  against  him  for  such  taking.  While  the  actual 
possession  was  in  B.,  it  did  not  appear  that  any  possession 
w^hatever  had  been  delivered  to  C. ;  neither  had  C.  the  abso- 
lute property  in  any  of  the  brick  until  B.  had  exercised  his 
right  of  selection.^ 

§  520.  The  person  who  has  the  general  property  in  a  per- 
sonal chattel  may  maintain  trespass  for  the  taking  of  it  by  a 
stranger,  although  he  never  had  the  possession  in  fact ;  a 
general  property  drawing  to  it  a  possession,^  In  Bulkley  v. 
Dolbeare,^  A.  owned  a  farm,  which  he  leased  for  years  to  B. ; 
and  C,  while  A.  w^as  out  of  the  actual  possession,  "without 
license,  cut  down  trees,  and  some  time  after  the  severance  of 
them  from  the  soil,  carried  them  away.  It  was  held,  that 
trespass  de  honis  asportatis  might  be  maintained  by  A. 
against  C.  The  case  involved  a  single  proposition,  and  that 
was,  that  the  plaintiff  having  the  general  property  in  the 
trees,  which  were  not  in  the  actual  possession  of  any  one  at 
the  time  of  the  trespass,  the  law  invested  him  with  a  con- 
structive possession,  and  with  the  right  of  maintaining  the 


'  Howe  V.  Keeler,  27  Conn.  538.  ■  Crofoot  v.  Bennett,  2  N.  Y.  258. 

'  Bro.  Abr.  Tit.  Trespass,  pi.  30.3,  341 ;  Bac.  Abr.  Trespass,  C,  2,  3 ;  Stark. 
Ev.  1439 ;  Smith  v.  Mills,  1  Term  R.  475 ;  W^ard  v.  Macauley,  4  lb.  489 ;  Gorden 
T.  Harper,  7  lb.  9. 

^  7  Conn.  232. 


§  521.  GENERAL    RULE.  513 

action.*  So  where  A.  mortgages  to  B.  a  shop  standing  on 
the  land  of  C,  B.  may  maintain  trespass  against  D.,  who 
pulls  down  the  shop  and  carries  it  away,  although  it  is  un- 
occupied at  the  time,  and  B.  never  took  actual  possession.^ 

§  521.  The  rule  is  well  settled,  however,  that  in  order  to 
maintain  trespass  de  bonis  asportatis^  it  is  essential  that  the 
plaintiff  have  had  at  the  time  of  the  commission  of  the  in- 
jury the  actual  or  constructive  possession  of  the  goods,  or  a 
general  or  special  property  in  them,  and  a  right  to  the  imme- 
diate possession.^  This  point  first  came  under  consideration 
in  New  York,  in  Putnam  v.  Wyley,^  in  which  the  Supreme 
Court  of  that  State,  approving  Ward  v.  Macauley,*  said  : 
"  That  case  was  no  more  than  a  recognition  of  the  settled 
principle  that  a  plaintiff  cannot  bring  trespass  for  taking  a 
chattel,  unless  he  has  the  actual  or  constructive  possession  at 
the  time.  He  must  have  such  a  right  as  to  be  entitled  to  re- 
duce the  goods  to  actual  possession  when  he  pleases."  In 
Ward  V.  Macauley,  Lord  Kenyon  said  that  the  distinction 
between  trespass  and  trover  was  w^ell  settled ;  the  former 
being  founded  on  possession,  the  latter  on  property  ;  and  he 


'  Woodruflf  V.  Halsey,  8  Pick.  333. 

"^  Hume  V.  Tufts,  6  Blackf.  136 ;  Canuon  v.  Kinney,  3  Scam.  9 ;  ]^['Farlaud  v. 
Smith,  Walker,  173;  Bell  v.  Monahan,  Dudley,  S.  C.  38;  Codman  v.  Freeman,  3 
Cush.  306;  Boise  v.  Knox,  10  Mete.  40;  Thurston  v.  Blanchard,  22  Pick.  18; 
Woodruff  V.  Halsey,  8  Pick.  333 ;  Perkins  v.  Weston,  3  Cush.  549 ;  Bird  v.  Clark, 
3  Day,  272;  Crenshaw  v.  Moore,  10  Geo.  384;  Bulkley  v.  Dolbeare,  7  Conn.  32; 
Freeman  v,  Rankins,  21  Maine,  446 ;  Staples  v.  Smith,  48  Maine,  470 ;  Walcot 
V.  Pomeroy,  2  Pick.  121;  Lunt  v.  Brown,  1  Shepl.  236;  Brown  v.  Thomas,  26 
Miss.  33o;  Clark  v.  Carlton,  1  N.  Hamp.  110;  Hanmer  v.  Wilsey,  17  Wend.  91; 
Dallam  v.  Fitler,  6  Watts  &  Serg.  323;  Heath  v.  West,  8  Fost.  101;  Maggridge 
V,  Eveleth,  9  Mete.  233. 

=  8  Johns.  432;  and  see  Wilson  v.  Mackreth,  8  Burr.  1824  ;  Smith  v.  Milles, 
1  T.  R.  480. 

*  4  Term  R.  489;  but  see  Gordon  v.  Harper,  7  lb.  11. 

*  Possession  and  ownership  of  land  from  which  rails  and  logs  have  been 
wrongfully  taken,  is  prima  facie  evidence  of  title  to  them  (Dorcey  v.  Patterson, 
7  Clarke,  Iowa  R.  430).  A  claimant  on  public  land  who  has  left  rails  piled 
thereon,  when  it  is  entered  may  sue  a  person  who  has  taken  them  by  permission 
of  the  owner  of  the  land  (Robertson  v.  Phillips,  3  Iowa,  330). 

Two  persons  claiming  a  field,  but  without  either  a  title  or  actual  possession, 
raised  thereon  corn.  One  of  them  afterward  cut  the  corn,  piled  it  in  heaps,  and 
left  it  for  a  week.  It  was  held  that  he  had  not  thereby  such  an  exclusive  pos- 
session of  the  corn  as  to  empower  him  to  maintain  an  action  against  tiie  other 
for  removing  it  (McGahey  v.  Moore,  3  Iredell,  35). 
Vol.  I.—  33 


514  WHO    MAY  MAINTAIN   THE  ACTION.  §  521. 

held  that  as  the  plaintiff  had  no  possession  of  the  chattels 
when  the  supposed  trespass  was  done,  his  remedy  was  by 
action  of  trover  founded  on  his  property  in  the  goods.*  In 
an  action  against  an  officer  for  wrongfully  attaching  the 
goods  of  the  plaintiff',  it  w^as  objected  that  the  instruction  to 
the  jury,  that  to  entitle  the  plaintiff  to  recover,  he  must 
show  that  at  the  time  of  the  alleged  trespass  he  held  a  title 
to  the  property,  or  to  some  part  of  it,  was  incorrect  and 
might  mislead  the  jury,  the  word  title  having  an  indefinite 
signification.  But  it  w^as  held  that  there  was  no  ground  for 
such  an  exception ;  that  a  party  might  have  a  title  to  prop- 
erty, although  he  was  not  the  absolute  owner ;  that  if  he  had 
the  actual  or  constructive  possession  of  property,  or  the  right 
of  possession,  he  had  a  title  thereto,  notwithstanding  an- 
other party  might  be  the  owner ;  but  that  if  the  plaintiff 
had  not  the  possession,  nor  the  right  of  possession,  nor  the 
right  of  property,  he  certainly  could  not  maintain  his  ac- 
tion.^ f  H.  bought  what  is  termed  "  timber  leave,"  that  is 
* 

^  Roberts  v.  Wentworth,  5  Cush.  192. 

*  Demand  and  refusal  constitute  no  foundation  for  an  action  of  trespass  which 
is  a  tortious  invasion  of  the  possession  of  another  (Imlay  v.  Sage,  5  Conn.  489, 
per  Peters,  J.). 

In  Eoot  V.  Chandler,  10  Wend.  110,  the  plaintiflf  lent  two  horses  to  Messrs. 
Rice  and.  Goss,  to  go  east  as  far  as  Clarence,hut  no  further.  Goss,  however,  took 
the  horses  to  Batavia,  where  they  were  seized  by  a  constable  on  an  execution 
against  Rice.  Shortly  afterwards  the  creditors  of  Rice,  of  whom  the  defendant 
was  one,  held  a  meeting  and  directed  the  constable  to  detain  the  horses,  they 
agreeing  to  indemnify  him.  The  constable  kept  the  horses  secreted  about  a  week 
to  avoid  a  replevy,  which  was  threatened  by  some  person  other  than  the  plaintiff, 
and  then  sold  them.  It  was  held  that  the  plaiutilf  had  sufficient  possession  to 
maintain  trespass,  and  that  the  defendant  was  liable. 

In  an  action  against  an  officer  for  wrongfully  seizing  and  selling  the  plaintiff's 
property  under  an  execution,  the  person  who  owned  the  property  at  the  time  of 
the  trespass  is  properly  made  plaintiff,  though  he  sold  the  property  before  the 
action  was  brought  (Boynton  v.  Willard,  10  Pick.  166). 

Where,  after  the  goods  of  A.  were  attached  in  a  suit  against  B.,  A.  sold  them 
to  C,  it  was  held  that  A.  might  maintain  an  action  of  trespass  against  the  attach- 
ing officer  for  the  benefit  of'^C.  (Holly  v.  Huggeford,  8  Pick.  73).  Parker,  C.  J. : 
•'the  property  at  the  time  of  the  assignment  was  in  the  custody  of  the  law  under 
an  attachment.  The  plaintiff's  right  was  in  action  only,  and  he  could  not  sell  so 
as  to  enable  the  vendee  to  sustain  an  action.  He  had  a  right  to  carry  on  the  suit 
in  his  own  name  for  the  benefit  of  his  vendee,  and  the  defendant  cannot  object 
to  his  want  of  title  on-  this  ground.'' 

t  Winship  et  al.  v.  Neale,  10  Gray,  382,  was  an  action  for  taking  and  carrying 
awav  the  plaintifis'  goods.  At  the'trial,  in  the  Superior  Court,  it  was  claimed, 
in  behalf  of  the  defendant,  that  "the  plaintiffs  had  not,  at  the  time  of  taking  by 
the  defendant,  the  possession  of  the  articles  sued  for,  nor  the  right  to  immediate 


§  521.  GENERAL    RULE.  515 

tlie  riglit  to  cut  timber  and  manufacture  it  into  staves,  the 
staves  not  to  be  removed  from  the  land  until  they  were  paid 
for.  After  making  the  staves,  he  sold  the  right  to  D.  No 
actual  delivery  of  possession  hj  H.  to  D.  was  necessary  to 
make  the  transfer  good  as  against  H.'s  creditors.  All  that 
passed  to  D.,  however,  was  the  right,  upon  payment  of  the 
timber  leave,  to  take  the  staves.  The  staves  having  been 
levied  on  by  the  sheriff  as  the  property  of  H.,  it  was  held 
that  as  D.  had  not  paid  for  them,  he  had  neither  the  pos- 
session nor  right  of  possession,  and  could  not  maintain 
trespass  for  taking  them.^  The  owner  of  lost  goods  has  not 
such  possession  as  will  enable  him  to  maintain  trespass  for 
them.^     And  where  a  wagon  has  been  made  for  a  person  by 


possession,  and  could  not  therefore  maintain  the  action.''  The  judge,  however, 
charged  the  jury,  that  '"although  such  was  the  law  previous  to  the  new  practice 
act,  it  was  not  so  then ;  and  that  it  was  not  necessary  for  the  plaintiflfs  to  have 
actual  possession,  or  the  right  to  immediate  possession,  if  the  jury  were  satisfied 
that  they  were  the  owners  at  the  time  of  the  taking."  A  verdict  having  been 
found  for  the  jjlaintiffs,  the  Supreme  Court,  in  setting  it  aside,  said :  "  The  cause 
of  action  set  out  in  the  declaration  was  either  in  the  nature  of  trespass  for  wrong- 
fully taking  goods  belonging  to  the  jilaintifts,  or  of  trover  for  converting  them. 
In  either  case  it  was  necessary  to  show  possession,  or  a  right  to  immediate  pos- 
session, otherwise  the  evidence  would  fail  to  support  the  essential  allegations  in 
the  declaration.  The  practice  act  makes  no  change  in  the  rules  of  evidence 
applicable  to  the  various  causes  of  action  comprehended  under  the  general 
designation  of  actions  of  tort.  The  ruling  of  the  court  would  have  been 
correct  if  the  declaration  had  been  for  the  wrongful  act  of  the  defendant  in 
depriving  the  plaintifts  of  their  reversionary  right  or  ownership  in  the  property, 
subject  to  the  special  right  or  interest  therein;  but  it  was  erroneous  as  applied 
to  the  cause  of  action  set  out  in  the  declaration  "  (citing  Robinson  v.  Austin,  3 
Gray,  5G4). 

Where  lumber  is  left  by  a  lessee  upon  the  demised  premises  at  the  expiration 
of  his  term,  he  cannot  maintain  trespass  against  a  subsequent  purchaser  of  the 
land  who  is  in  possession  for  taking  the  lumber  (Weitzel  v.  Marr,  46  Penn.  St.  R. 
463). 

Where  land  sold  or  leased  remains  in  the  actual  possession  of  the  vendor  or 
lessor,  no  constructive  possession  of  the  personal  property  on  it  can  be  raised 
for  the  aid  of  the  vendee  or  lessee  against  such  actual  possession,  for  this  would 
make  the  constructive  possession  more  potential  than  the  actual  and  apparent  one 
(Flanagan  v.  Wood,  33  Vt.  333). 

So,  where  the  vendor  and  vendee,  or  the  lessor  and  lessee  remain  in  the  joint 
po3.session  of  the  land,  the  same  rule  as  to  change  of  possession  of  jicrsoualty 
applies  as  in  the  joint  jiossession  of  personal  property  alone,  viz. :  that  if  the 
possession  of  the  vendee  or  lessee  is  apparently  that  of  a  joint  owner,  and 
there  is  no  actual  and  exclusive  possession  of  the  personal  property  by  the 
vendee,  the  personal  property  on  the  land  will  be  deemed  to  be  in  their  joint  pos- 
session, and  a  sale  or  attachment  of  it,  without  removal,  will  be  void  (lb.  citing 
Stephenson  v.  Clark,  30  Vt.  634;  Mills  v.  Warner,  19  Vt.  609;  Stiles  v.  Sliumway, 
16  Vt.  435;  Parker  v.  Kendrick,  39  Vt.  388). 

'  Creps  V.  Dunham,  69  Penn.  St.  R.  456.        '  Wright  v.  The  State,  5  Yerg.  154, 


516  WHO    MAY  MAINTAIN  THE   ACTION,  §  522. 

agreement,  lie  lias  not  such  a  title  to  it  as  will  support  an 
action  of  tresjDass  until  there  has  been  an  express  or  implied 
delivery  and  acceptance  of  the  wagon.^  ■^* 

§  522.  The  owner's  possession   of  personal  property  is 


'  Ledbetter  v.  Blassingame,  31  Ala.  495. 

*  But  where,  in  an  actiop  of  trespass  for  taking  and  carrying  av/ay  a  desk 
belonging  to  the  plaintiff,  which  was  being  made  for  him  by  one  Brown,  it  ap- 
peared that  the  plaintiff  furnished  part  of  the  materials,  and  Brown  the  residue, 
and  that  the  desk  was  attached  ijy  the  defendant,  as  deputy  sheriff,  on  process 
against  Brown,  and  taken  from  Brown's  shop  when  partly  constructed,  it  was 
held  that  the  property  and  right  to  immediate  possession  being  in  the  plaintiff", 
he  was  entitled  to  a  verdict. 

Where,  in  an  action  of  trespass  for  a  quantity  of  starch,  the  possession  of 
which  the  plaintiff  claimed  by  reason  of  having  attached  it  in  the  barn  of  a 
third  person,  it  appeared  that,  at  the  time  of  the  attachment,  the  plaintiff  did 
not  move  or  take  possession  of  tlie  starch,  except  by  notifj'ing  said  third  person ; 
it  was  held  that  the  plaintiff  liad  not  such  property  in  the  starch  as  to  enable 
him  to  maintain  trespass  therefor  against  one  who  afterward  attached  and  took 
possession  of  the  same  on  other  writs  of  attachment  (Blake  v.  Hatch,  25  Vt. 
555). 

Carter  v.  Simpson.  7  Johns.  535,  was  an  action  of  trespass  for  destroying  a 
stack  of  hay  belonging  to  the  plaintiff,  and  tearing  down  and  carrying  away  the 
fence  around  the  stack.  The  plaintiff  was  allowed  to  prove  his  ownership  of  the 
hay  in  a  stack  on  the  land  of  the  defendant,  by  purchase  at  a  constable's  sale  on 
execution  against  one  Jarvis,  without  the  production  of  the  execution  and  judg- 
ment under  which  the  sale  was  made;  and  the  defendant  was  not  allowed  to 
prove  that  the  execution  had  expired  at  the  time  of  the  sale.  The  Supreme 
Court,  in  reversing  the  judgment,  said:  "  As  the  plaintiff  below  never  had  pos- 
session of  the  hay,  which  was  on  the  defendant's  ground  at  the  time  of  the  al- 
leged injury,  he  was  bound  at  least  to  show  a  right  of  property.  The  proof  of  a 
purchase  at  auction,  at  a  constable's  sale,  without  showing  the  authority  under 
which  the  constable  acted,  was  not  enough.  If  the  constable  had  no  authority 
to  sell  the  hay,  the  vendee  had  no  title.  The  books  have  gone  so  far  as  to  saj' 
that  a  vendee  under  a  lawful  judgment  and  execution  shall  not  lose  his  property 
upon  a  reversal  of  the  judgment  by  writ  of  error.  But  no  case  admits  a  title  in 
the  purchaser  when  the  sheriff  acted  without  authority  "  (see  3  Hill,  557 ;  1 
Keruan,  71). 

Where  the  wife's  personal  property  in  possession  vests  absolutely  in  the  hus- 
band upon  the  marriage,  for  an  injury  done  to  it  subsequently,  she  cannot  join. 
In  Rawlins  v.  Rounds,  27  Vt.  17,  the  declaration  averred  that  the  property  be- 
longed to  the  wife,  without  any  averments  as  to  the  time  of  the  trespass  with 
reference  to  the  marriage.  It  was  objected,  on  demurrer,  that  tliere  was  no  suffi- 
cient allegation  of  either  title  or  possession  in  the  plaintiffs  at  the  time  of  the 
injury.  The  court,  in  sustaining  the  demurrer,  said:  "In  order  to  render  it 
proper  for  the  wife  to  join  in  this  action,  we  must  presume  this  property  was 
the  wife's,  and  taken  from  her  before  marriage,  nothing  of  which  appears  in  the 
declaration.  For  if  the  wife  earned  the  property  after  marriage,  and  so  was,  in 
some  sense,  the  meritorious  cause  of  action,  as  the  books  term  it,  this  will  not 
enable  her  to  have  a  separate  property  in  things  personal  reduced  to  possession  ; 
but  both  the  property  and  possession  become  that  of  the  husband.  And  a  mar- 
riage settlement,  to  enable  the  wife  to  hold  separate  personal  property  in  posses- 
sion, could  only  be  created  by  the  intervention  of  trustees,  and  the  legal 
possession  would  be  in  them  for  her  benefit;  so  that  it  seems  to  us  altogether 
impossible  to  get  over  this  first  difficulty,  which  seems  fatal  on  general  de- 
murrer." 


§  522.  GENERAL    RULE.  517 

constructive,  when  it  is  either  in  the  actual  custody  of  no 
one,  but  rightfully  belongs  to  himself,  or  when  it  is  in  the 
care  and  custody  of  his  servant,  agent,  or  overseer,  or  in  the 
hands  of  a  bailee  for  custody,  carriage,  or  other  care  or  serv- 
ice, as  a  depositary,  mandatary,  carrier,  borrower,  or  the 
like,  where  the  bailee  or  actual  possessor  has  no  vested  inter- 
est or  right  to  the  beneficial  use  or  enjoyment  of  the  property ;, 
or  to  retain  it  in  his  possession,  but  the  owner  may  take  it 
into  his  own  hands  at  pleasure.*  Where  goods  are  locked 
up  in  a  vacant  house,  of  which  the  owner  of  the  goods  is 
lessee,  the  owner,  although  at  a  distance,  is  constructively  in 
possession.^  Standing  timber,  when  sold  by  the  owner  of 
the  land  and  severed  from  the  ^oil  by  the  vendee,  becomes, 
the  personal  property  of  the  latter,  and  he  may  maintain 


'  Briihl  V.  Parker,  3  Brevard,  406. 

*  Of  course,  where  the  plaintiff  relies  upon  constructive  possession  arising  by 
implication  of  law  from  the  alleged  fact  that  the  legal  title  is  in  him,  unless  he 
can  establish  his  title,  he  is  left  without  possession,  either  actual  or  constructive, 
and,  consequently,  without  a  basis  for  his  action  to  rest  upon.  Howe  v.  Farrar 
(44  Maine,  233)  was  an  action  of  trespass  against  a  sheriff  for  attaching  certain 
personal  property  belonging  to  the  plaintiff  on  a  writ  against  one  Foster.  The 
plaintiff,  to  prove  his  title,  introduced  a  mortgage  from  Foster.  The  defendant 
contended  that  he  obtained  no  title,  and,  consequently,  no  constructive  posses- 
sion, by  virtue  of  that  mortgage,  for  the  reason  that  Foster  had,  before  the  exe- 
cution thereof,  divested  himself"  of  his  title  to  the  property  by  mortgaging  it  ta 
one  Brown;  and  to  show  that  fact,  he  offered  the  Brown  mortgage  in  evidence, 
which  was  excluded.  The  Supreme  Court,  in  granting  a  new  trial,  on  account 
of  this  ruling,  said:  "How  the  fact  would  have  turned  out  had  the  evidence 
offered  been  admitted,  we  cannot  determine.  Further  investigation  might  have 
shown  that  the  Brown  mortgage  had  been  paid,  or  in  some  way  canceled  or  dis- 
charged; in  which  event,  the  plaintift''s  title  and  his  constructive  possession 
would  apparently  have  been  established;  or  it  might  have  turned  out  that  the 
mortgage  had  been  foreclosed,  and  that  tlie  title  of  Brown  had  become  absolute. 
This  would  have  wholly  defeated  the  plaintiff's  riglit  of  action,  in  which  event, 
the  defendant  could  not  have  been  called  upon  by  him  to  justify  his  taking. 
The  Brown  mortgage  was  competent  testimony  tending  directly  to  establish  this 
proposition.  Whether  it  was  sufficient,  or  could  have  been  made  sufficient,  with 
other  testimony  in  the  power  of  the  defendant  to  introduce,  we  cannot  determine. 
It  certainly  would  constitute  an  important  link  in  a  chain  of  evidence  having 
that  legitimate  tendency,  and  for  that  purpose  should  have  been  admitted."  In 
Howe  v.  Farrar,  supra,  it  was  objected  that  the  defendant  could  not  avail  him- 
self of  the  Brown  mortgage  to  justify  his  taking  by  showing  title  in  some  party 
other  than  the  plaintiff,  unless  lie  coaid  connect  himself  with  such  outstanding 
title.  To  wliicii  it  was  answered  tliat  this  was  undoubtedly  true,  if  the  object 
of  such  evidence  was  to  justify  the  taking  of  the  property  from  the  possession  of 
the  plaintiff;  but  that  the  defendant  denied  that  the  possession  was  in  the  plaintiff 
at  the  time  of  the  alleged  taking. 


518  WHO    MAY    MAINTAIN   THE   ACTION.  §  523. 

trespass  against  a  wrong-doer  for  its  removal.^  A.,  who 
owned  land,  sold  to  B.  tlie  riglit  to  cut  and  remove  wood 
therefrom ;  and  B.,  having  cut  the  wood,  left  it  on  the  land. 
Subsequently,  C,  under  a  habere  facias  possessionem^  issued 
upon  a  judgment  in  ejectment,  obtained  by  default  against 
A.,  went  on  the  land,  and  took  and  carried  away  the  wood 
cut  by  B. ;  and  A.  afterward  established  his  title  to  the  land 
and  regained  possession.  It  was  held  that  B.  was  entitled  to 
recover  iu  trespass  against  C.  for  the  wood  taken  by  him.^ 
But  the  lien  of  an  execution  before  levy  gives  the  sheriff  no 
right  to  maintain  trespass  for  its  removal.  The  sheriff  has 
by  his  writ  only  a  right  to  levy,  not  possession.  He  is  not 
an  owner,  but  armed  merely  with  a  power,  and,  therefore, 
before  levy,  can  maintain  no  action  founded  upon  an  injuiy 
done  to  the  possession.^  So,  likewise,  an  auctioneer,  put  into 
possession  of  fixtures  attached  to  the  freehold,  for  the  purpose 
of  selling  them,  the  purchaser  being  bound  to  detach  and  re- 
move them,  has  not  such  a  possession  as  will  support  trespass 
for  their  wronoful  removal.* 

§  523.  The  mere  delivery  of  goods  to  another  to  keep, 
with  right  to  resume  the  possession  at  any  time,  will  not  de- 
feat the  action.^  A.  delivered  to  B.  o-oods  to  be  sold  on  com- 
mission  or  returned  on  demand.  C.  attached  the  goods  as 
the  property  of  B.  It  -s^-as  held  that,  as  the  general  property 
in  the  goods  unsold  and  the  right  to  their  immediate  posses- 
sion remained  in  A.,  he  could  maintain  trespass  for  them.*^  * 


'  Gambling  v.  Prince,  2  N.  &  M.  ]  38.  But  see  Waggoner  v.  Corlew,  Cooke, 
216. 

=  King  V.  Baker,  25  Penn.  St.  R.  186. 

=  Cluley  V.  Lockhart,  59  Penn.  St.  R.  376. 

^  Davis  v.  Banks,  3  Exch.  435;  18  L.  J.  213. 

'Hart  V.  Hyde,  5  Vt.  338;  ThoiiD  v.  Burling,  11  Johns.  285;  Walker  v. 
Wilkinson,  35  Ala.  725. 

*■■  Shloss  v.  Cooper,  27  Vt.  623. 

*  Hay  ward  Rubber  Co.  v.  Duncklee  (30  Vt.  29)  was  an  action  of  trespass  for 
rubber  shoes,  which  had  been  consigned  by  the  plaintiffs  to  B.  &  T.,  to  be  sold 
by  them  on  commission,  and  which  the  defendant,  a  constable,  had  attached  as 
the  property  of  B.  &  T.  It  was  proved  by  one  Holton  that  he  was  the  traveling 
agent  of  the  plaintiff,  and  as  such  agent  he  had  agreed  Avith  B.  &  T.  that  the 
rubbers  in  question  should  be  consigned  to  them  to  be  sold  on  a  specified  com- 


§  523.  GENERAL    RULE.  519 

'The  receiptor  of  property  attached  who  delivers  it  to  another, 
may  maintain  trespass  against  one  who  takes  it  away,  the  re- 
ceiptor having  the  constructive  possession  of  it,  and  being 
answerable  for  it  to  the  person  from  whom  he  received  it.^ " 
So,  likewise,  one  who  has  goods  in  the  hands  of  an  auctioneer 
for  sale,  with  the  right  to  resume  possession  at  any  time,  may 
maintain  an  action  of  trespass  against  an  officer  who,  with 


mission;  that  the  company  approved  of  the  arrangement,  and  the  rubbers  were 
sent  by  him  to  B.  &  T.,  pursuant  thereto.  Tlie  court,  before  which  the  trial  was 
had,  instructed  the  jury  tliat,  if  it  appeared  that,  at  the  time  of  the  attach- 
ment, the  plaintiffs  were  indebted  to  B.  &  T.  for  commissions,  B.  &  T.  would 
have  a  lien  on  the  rubbers,  so  that  the  plaintiffs  would  not  have  such  a  right  to 
possession  of  the  rubbers  as  to  enable  them  to  maintain  trespass.  But  that,  if  B. 
&  T.  had  the  rubbers  under  the  contract  testified  to  by  Holton,  and  B.  &  T.  had  no 
claim  for  commissions,  and  they  had  not  paid  the  plaintiffs  anything  for  the  rub- 
bers which  the  plaintiffs  sent  them,  the  plaintiffs  had  such  a  right  to  the  posses- 
sion of  the  property  in  question  that  trespass  was  the  proper  remedy ;  it  being 
conceded  that  B.  &  T.  became  insolvent  a  few  days  before  the  property  was  at- 
tached by  the  defendant.  The  Supreme  Court  said:  "In  regard  to  the  plaintiffs' 
right  to  maintain  trespass,  we  think  the  charge  was  right.  The  plaintiffs  had 
the  general  ownership  of  the  goods,  and  B.  &  T.  had  no  lien  upon  them  for  com- 
missions ;  and  though  they  had  the  possession  of  them  imder  the  bailment,  with 
a  power  of  sale,  yet,  upon  the  insolvency  of  B.  &  T.,  there  was  a  right  in  the 
plaintiffs  to  imniediate  and  actual  possession,  and  this  general  right  would  give 
a  constructive  possession  "  (citing  Chaffee  v.  Sherman,  26  Vt.  237).  The  case  of 
Skiff  V.  Solace  (23  Vt.  279)  is  not  analogous  to  the  foregoing.  There  the  plaintiff" 
was  not  the  general  owner  of  the  chattels,  and  of  course  could  not,  by  means  of 
a  special  property,  have  a  constructive  possession  (Bennett,  J.,  in  Hayward  Rub- 
ber Co.  V.  Duncklee,  supra). 

'  Burrows  v.  Stoddard,  3  Conn.  160,  431. 

*  Where,  in  an  action  of  trespass  for  taking  and  carrying  away  cattle,  it  ap- 
peared that  the  plaintiff,  who  was  a  deputy  sheriff,  havingattached  them,  re- 
moved them  into  the  State  of  Rhode  Island,  where  he  placed  them  in  charge  of 
two  persons,  taking  their  receipt,  and  they  delivered  them  for  safe  keeping  to 
one  P.,  who  lived  in  Rhode  Island,  and  he  kept  them  until  they  were  taken  by 
the  defendants,  who  had  notice  of  the  attachment,  it  was  held  that  the  plaintiff 
was  entitled  to  recover  (Brownell  v.  Manchester,  1  Pick.  232).  Parker,  C.  J. : 
"The  inquiry  is,  whether  the  special  property  of  the  plaintiff  was  determined  on 
the  goods  being  carried  into  the  State  of  Rhode  IsUmd ;  and  there  is  no  pretense 
for  this,  for  the  officer  had  the  contract  of  his  bailee  to  redeliver  them  when  they 
should  be  wanted ;  and  if  they  were  brought  to  him  when  he  should  want  them 
to  satisfy  the  execution,  they  would  l)e  considered  as  holden  from  the  time  of  the 
attachment.  There  seems  to  be  no  difference,  as  to  the  authority  of  the  officer 
over  the  goods,  between  carrying  them  just  over  the  line  of  an  adjoining  State, 
and  carrying  them  into  an  adjoining  county;  for  he  has  as  much  authority  in  the 
one  place  as  the  other.  Then,  supposing  them  to  be  in  the  custody  and  posses- 
sion of  the  plaintiff  when  taken  Ijy  the  defendants,  as  they  may  be  legally  held 
to  be,  the  taking  was  a  trespass  for  whicli  the  defendants  must  be  answerable  in 
damages." 

Where  goods  whicli  have  been  levied  upon  and  left  in  the  custody  of  the 
owner  are  wrongfully  taken  away,  either  the  slieriff  or  the  owner  may  maintain 
trespass  therefor;  but  a  recovery  by  one  will  bar  an  action  by  the  other  (Brown- 
ing v.  Skillman,  4  Zabr.  351). 


520  WHO    MAY  MAINTAIN   THE   ACTION.  §  524, 

knowledge  of  the  facts,  levies  upon  the  goods  as  the  property 
of  a  third  person.^  Williams  agst.  Lewis  ^  was  an  action  of 
trespass  for  tin  ware  w^hich  the  plaintiff  had  delivered  to  one 
Warner,  a  pedlar,  to  carry  to  Farmington,  but  which  Warner 
took  to  a  different  place  and  sold  to  the  defendant.  The 
court  said:  "The  question  of  fact  in  this  case  is,  whether 
there  was  a  sale  of  the  property  by  the  plaintiff  to  Warner 
before  it  was  disposed  of  to  the  defendant.  If  the  plaintiff 
did  not  sell  the  property  to  Warner,  the  possession  of  Warner 
is  to  be  considered  the  possession  of  the  2:)laintiff,  and  is  suf- 
ficient to  enable  him  to  maintain  the  action."'^  A.  commis- 
sioned her  brother  to  buy  a  cow  for  her,  which  he  did  a  fort- 
night afterward.  But,  before  the  cow  had  either  come  to  A.'s 
hands  or  she  had  assented  to  the  purchase,  the  cow  was  taken 
by  the  defendant.  It  was  held  that  A.  had  such  a  property 
in  the  cow  as  would  enable  her  to  maintain  trespass.^ 

§  524.  Within  the  rule  under  consideration,  when  the 
owner  of  a  chattel  gratuitously  permits  another  person  to  use 
it,  the  owner  may  maintain  trespass  for  the  taking  of  it  while 
it  is  being  so  used.^  Accordingly,  where  a  father  permitted 
his  daughter  to  have  the  use  of  cows,  which,  or  their  increase, 
■continued  in  her  possession  several  years,  it  was  held,  that 
the  father  might  maintain  trespass  for  taking  them,  or  their 
young,  from  the   daughter's  possession.^  f      And  the  same 


'  Gauche  v.  Mayer,  27  111.  134.  ''  3  Day,  498. 

'  Thomas  v.  Pliillips,  7  Car.  &  P.  573. 

'  Lotan  V.  Cross,  2  Camp.  464;  Root  v.  Chandler,  10  Wend.  110. 

*  Orser  v.  Storms,  9  Covven,  687. 

*  Chaffee  v.  Sherman  (26  Vt.  237)  was  an  action  of  trespass  for  certain  goods 
taken  on  a  writ  of  attachment  against  one  Lampson.  It  appeared  that  the  goods 
were  furnished  by  the  phdutiii  to  Lampson  to  peddle  on  commission,  the  plaintiff 
reserving  the  right  to  retake  the  goods  at  any  time,  and  Lampson  to  return  them 
when  he  pleased.  A  sum  of  money  equal  in  amount  to  the  goods  taken  by  Lamp- 
son  the  first  time  was  deposited  by  him  with  the  phiintitt"  as  collateral  security. 
After  Lampson  had  sold  part  of  the  goods,  the  plaintiff  let  him  have  more  goods 
on  the  same  terms,  for  which  he  paid  thirty-nine  dollars,  which  only  lacked  a 
few  dollars  of  being  all  that  was  due  for  the  goods  taken  at  tliis  time.     These- 

-were  the  goods  which  were  the  subject  of  the  present  action.  It  was  held  that 
the  plaintiff  was  entitled  to  recover  the  balance  unpaid  on  the  second  bill  of 
goods,  after  deducting  the  thirty-nine  dollars  and  interest. 

t  Where  a  father  let  his  daughter  have  a  cow  in  payment  for  her  work 


§  624.  GENERAL    RULE.  521 

was  held  in  an  action  by  the  owner  of  a  horse  taken  on  an 
execution  against  the  person  to  whom  the  owner  lent  the 
horse.-'  Walcot  v.  Pomeroy^  was  an  action  of  trespass  for 
taking  and  carrying  away  household  furniture,  which  was 
lent  by  the  plaintiff  to  one  Richardson,  his  brother-in-law. 
Nothing  was  agreed  to  be  paid  for  the  use  of  the  furniture^ 
thousfh  Richardson  testified  on  the  trial  that  he  calculated  to 
pay  what  was  reasonable.  The  furniture  was  seized  under 
an  attachment  sued  out  by  the  defendant  against  Richardson. 
A  verdict  was  found  for  the  plaintiff  in  the  court  below,  sub- 
ject to  the  opinion  of  the  Supreme  Court,  which  held,  that  he 


family,  she  being  of  age.  but  kept  the  cow,  and  afterward,  with  her  consent, 
sold  it  and  delivered  to  her  the  avails  of  the  sale,  with  which,  by  her  direction, 
he  bought  another  cow  ;  it  was  held,  that  in  the  absence  of  fraud  in  fact,  the 
cow  last  purchased  was  not  liable  to  attachment  for  the  debts  of  the  father, 
though  he  bought  the  cow  in  his  own  name  and,  apparently,  on  his  own  account, 
and  it  had  always  been  in  his  possession  (Ridout  v.  Burton,  27  Vt.  388). 

Where  a  son  purchases  a  farm  in  order  to  provide  a  home  for  an  indigent 
father,  and  buys  stock  and  farming  implements  for  it,  knd  the  father  lives  and 
labors  on  the  farm,  the  products  thereof  are  not  liable  to  seizure  for  the  father's 
debts.  In  Brown  v.  Scott,  7  Vt.  57,  it  was  urged  in  behalf  of  the  defendant 
that  the  father  was  a  tenant  to  the  son,  and  so  became  the  owner  of  all  the  crops 
on  the  place,  and  that  the  same  were  subject  to  be  taken  for  the  father's  debts. 
CoUamer,  J. :  "  The  court  will  be  slow  to  give  to  a  lonajide  support  furnished 
by  a  son  to  a  father  such  artificial  names  and  technical  character  as  shall,  in 
effect,  discourage  and  frustrate  such  praiseworthy  objects.  To  create  a  tenancy 
there  must  be  some  parting  with  the  possession,  so  as  to  give  exclusive  occupancy 
to  the  tenant,  at  least  for  the  time  being.  Nothing  of  this  kind  was  shown  in 
this  case.  The  father  was  suffered  to  reside  there.  Now,  to  hold  this  a  tenancy, 
and  make  the  crops  there  the  property  of  the  father,  would  be  forcing  upon  the 
affair  a  character  never  designed  by  the  parties,  and  evidently  at  war  with  their 
legitimate  design.  The  true  object  is  obvious,  and  the  legal  character  should 
be  holden  by  the  courts  to  correspond  ;  that  is,  the  plaintifi"  is  the  owner  of  the 
farm,  stock,  tools  and  crops,  and  has  never  parted  with  j)ossession.  He  is,  by 
his  father,  in  constructive  possession,  with  the  right  of  taking  personal  and 
actual  possession  at  any  time.  This  entitles  him  to  maintain  trespass.  It  ap- 
pears the  plaintiff  had  said,  if  more  could  be  raised  than  was  necessary  for  the 
father's  support,  he  was  willing  it  should  go  on  his  debts.  This  did  not  vest 
the  title  in  tiie  father,  or  subject  it  to  attachment  as  his.  It  does  not  appear 
that  even  enough  for  the  support  was  raised.  Nor  do  the  facts  offered  by  the 
defendant  seem  to  alter  the  case,  had  tlie  proof  been  admitted.  He  offered  to 
show  that  the  father  had  sold  off  the  crops,  and  had  purchased  stock  on  to  the 
farm,  forwiiich  the  son  gave  his  note.  This  only  tended  to  prove  him  the  agent 
of  the  plaintiff,  not  owner  of  the  property.  Had  any  testimony  been  offered 
tending  to  prove  that  the  purchase  money  had,  in  whole  or  in  part,  belonged  to 
the  father,  or  that  lie  had  been  for  a  long  time  in  exclusive  possession,  and  by 
valual)le  labor  added  greatly  to  the  farm  and  stock,  and  was  secreting  his  prop- 
erty from  his  creditors  with  his  son's  assistance,  it  would  have  deserved  a  differ- 
ent consideration  and  course  of  proceeding;  but  the  case  is  destitute  of  all 
circumstances  of  that  character." 

'  Long  v.  Bledsoe,  3  J.  J.  Marsh.  307.  '  2  Pick.  121. 


522  WHO    MAY  MAINTAIN   THE  ACTION.  §  524. 

had  sufficient  possession  of  the  articles  to  entitle  him  to  main- 
tain the  action.*  Staples  v.  Smith  ^  was  an  action  of  trespass 
for  taking  a  horse  alleged  to  be  the  property  of  the  plaintiff. 
It  was  proved  that  one  Knox  sold  and  delivered  the  horse  to 
the  plaintiff,  and  at  the  same  time  gave  him  a  ])ill  of  sale 
containing  these  words :  '•  Said  Staples,  agreeing  to  let  the 
horse  remain  in  Wm.  N.  Knox's  hands  till  called  for."  The 
defendant  justified  as  an  officer  under  a  writ  against  Knox. 
It  appearing  that  the  horse  had  not  been  "  called  for,"  it  was 
urged  in  defense  that  for  that  cause  this  action  could  not  be 
maintained.  But  a  verdict  having  been  found  for  the 
plaintiff',  a  new  trial  was  refused.  Phillips  v.  Willard^  was 
an  action  against  a  sheriff  for  seizing  a  paper  making  machine 
belonging  to  the  plaintiffs.  It  appeared  that  the  plaintiffs, 
who  lived  in  Connecticut,  had  contracted  with  one  Burbank, 
residing  in  Worcester,  Massachusetts,  to  construct  for  him  a 
machine,  to  1)e  paid  for  if  it  worked  to  Burbank's  satisfaction  ; 
otherwise,  to  be  taken  back.  The  machine  weighed  several 
tons,  and  it  was  carted  in  different  parts  by  Burbank  to 
Worcester,  according  to  agreement.  It  was  set  up  by  the 
plaintiffs  in  Burbank's  mill,  and  put  in  operation  for  experi- 
ment before  all  the  parts  had  arrived,  but  it  did  not  work 
well,  and  it  was  immediately  thereafter  attached  by  the  de- 
fendant as  the  property  of  Burbank.  It  was  held,  that  the 
plaintiff' 's  possession  was  sufficient  to  maintain  the  action.f 


'  48  Maine,  470.  =  16  Pick.  29. 

*  In  Walcot  V.  Pomeroy,  supra,  the  ^"pi'eiiie  Court  said:  "This  action  may 
be  sustained  unless  the  plaintiff  had  parted  with  his  right  to  reclaim  the  furni- 
ture; and  it  does  not  appear  tliat  he  had.  If  it  had  been  leased  to  Richardson, 
so  that  the  plaintiff  could  not  claim  it  and  take  possession  when  he  pleased,  tres- 
pass would  not  lie  for  him  against  the  officer  or  any  one  else,  because  he  would 
then  have  parted  with  the  actual  possession,  and  would  not  have  had  a  construc- 
tive possession.  But  there  does  not  appear  to  have  been  any  lease  here.  There 
was  nothing  more  than  an  indulgence;  so  that  if  the  plaintiff  had  at  any  time 
taken  the  furniture,  Richardson  could  have  maintained  no  action  against  him. 
It  is  true,  Richardson  testified  that  .he  expected  to  make  the  plaintiff  a  compen- 
sation for  the  use  of  the  furniture.  But  there  was  no  agreement  between  them 
to  that  effect,  and  it  docs  not  appear  that  the  plaintiff  expected  to  receive  any 
compensation.  The  plaintiff  had  a  right  to  the  possession,  without  any  demand 
on  Richardson." 

t  In  Phillips  V.  Willarc],  supra,  the  court  said:  "The  first  and  most  import- 
ant question  in  the  case  relates  to  the  property  in  the  machine.     It  was  a  struc- 


§  525.  GENERAL    RULE.  523 

§  525.  Where  a  borrower  deposits  with  a  lender  personal 
property  as  security  for  a  loan,  the  lender  having  the  right 

ture  of  great  weight,  and  could  not  be  finished  at  their  own  building,  but  must 
have  been  in  the  same  local  situation  before  as  after  delivery;  and,  when  com- 
pleted, no  actual,  and  perliaps  no  symbolical  delivery,  would  liave  been  neces- 
sary. The  parts  were  to  be  removed  by  Burbank  to  his  works,  but  the  possession 
for'that  purpose  was  not  a  delivery.  The  plaintifi's  workmen  were  to  follow  the 
machine  to  Burbank's  land  and  there  complete  it,  and  they  accordingly  did  so, 
and  nearly  finished  it  before  the  attachment.  It  was  put  in  operation  as  an  ex- 
periment, and  operated  to  some  extent,  but  important  parts  were  wanting  to 
make  it  work  advantageously.  The  plaintiffs  would  not  have  been  justified  la 
oflering  it  to  Burbank  as  finished ;  and  if  they  had  refused  to  complete  it,  Bur- 
bank  could  not  have  maintained  trover  for  it,  but  his  remedy  would  have  been 
on  his  contract.  On  the  whole,  we  are  all  satisfied  that  the  evidence  did  not 
show  a  transfer  of  the  property  to  Burbank.  The  other  question  is,  whether  an 
action  of  trespass  will  lie  for  the  plaintiffs.  The  objection  on  the  part  of  the 
defendant  is,  that  they  had  not  such  possession  as  will  enable  them  to  maintain 
the  action.  We  havenot  deemed  this  point  so  clear  as  the  main  point.  The 
machine  was  in  the  building  of  Burbank,  which  was  in  his  possession.  Accord- 
ing to  his  agreement,  however,  the  plaintifl"s  had  a  right  to  go  there  to  finish 
the  machine,  and  he  could  not  maintain  trespass  quare  clausum  against  them. 
We  think  it  was  so  far  within  the  control  and  in  the  possession  of  the  plaintiffs 
under  their  contract  and  the  permission  of  Burbank,  that  the  action  will  lie.  If 
a  watchmaker  puts  up  a  clock  in  a  house,  under  an  agreement  that  if  it  shall 
keep  good  time  the  owner  of  the  house  will  purchase  it,  we  think  that  until  the 
trial  is  made  the  watchmaker  remains  in  possession,  so  as  to  be  able  to  maintain 
trespass." 

The  following  cases  sustain  the  principle  referred  to  in  the  text :  In  an  action 
of  trespass  against  a  deputy  sherift"  for  taking,  by  virtue  of  an  execution,  the 
plaintiff's  only  cow,  which  was  exempt  from  seizure  under  the  statute,  it  ap- 
peared that  the  cow  had  been  loaned  by  the  plaintiff  to  one  Whitney  for  the 
term  of  a  year,  and  that  the  defendant,  after  levying  upon  the  cow,  left  her  in 
the  possession  of  Wliitney  until  the  end  of  the  year,  and  then  drove  her  away 
and  sold  her.  It  was  held,  that  the  asportation  of  the  cow  was  a  fresh  trespass, 
for  which  the  action  might  well  be  maintained  by  the  plaintiff,  he  being  then  in 
the  constructive  possession  of  the  cow  (Keyes  v.  Howe,  18  Yt.  411).  Whitcomb 
V.  Tower,  12  Mete.  487,  was  an  action  of  trespass  against  a  constable  for  attach- 
ing wool  and  lambs,  the  property  of  the  plaintiff,  on  a  writ  against  Hix  and 
Stafford.  It  appeared  that  the  plaintift"  leased  to  the  latter  his  farm  for  one  year, 
and  also  "  certain  personal  property,  to  wit,  sixty -two  sheep,  the  same  sheep  to 
be  returned  if  living,  or  enough  to  make  the  number  good,  at  the  end  of  the 
year;  the  wool  now  growing  on  the  sheep,  and  the  lambs,  if  any,  which  the 
sheep  may  have  this  spring,  I  shall  claim  to  remain  my  property  until  the 
worth  of  it  and  them  is  paid  me  in  money  towards  the  use  of  the  place."  The 
wool  and  lambs  w  ere  taken  by  the  defendant  before  any  part  of  the  rent  reserved 
in  the  lease  had  been  paid.  The  judge  ruled  that  the  plaintiff  was  entitled  to 
recover  the  value  of  the  wool  and  lambs,  and  the  jury,  having  found  accordingly, 
the  Supreme  Court  refused  to  disturb  the  verdict.  The  court  said  :  '•  The  arti- 
cles of  agreement  made  between  the  ])laintiff  and  Hix  and  Stafford  clearly 
enough  indicate  the  intention  of  the  parties  as  to  the  property,  and  the  wool  and 
lambs  vesting  in  the  plaintitT  until  the  jjayment  of  the  rent.  The  only  question 
is.  whether  such  agreement  can  legally  have  the  eflect  intended  to  be  given  to  it 
by  the  jtarties  thereto.  We  think  tiie  present  not  like  the  case  of  Butterfield  v. 
Baker,  /)  Pick.  523,  where  an  agreement  that  the  future  crops  should  be  subject 
to  be  taken  by  tlie  lessor  at  all  times  for  the  payment  of  any  rent  that  might  be 
inarrear,  was  held,  not  to  give  priority  over  an  attaching  creditor;  the  lessor  not 
having  entered  upon  the  premises,  and  taken  possession  of  the  produce  under 


524  WHO    MAY   MAINTAIN   THE   ACTION.  §  525. 

to  sell  the  property,  and  after  deducting  the  amount  of  the 
loan,  to  pay  the  balance  to  the  borrower,  and  the  lender  ex- 
changes the  property  for  other  property,  such  other  property 
does  not  as  of  course  belong  to  the  lender  so*as  to  be  subject 
to  attachment  for  his  debts,  tlie  borrower  having  an  option 
within  a  reasonable  time  to  ratify  or  ]'epudiate  the  exchange. 
If  the  borrower,  within  a  reasonable  time,  bring  an  action  for 
the  taking  of  sucli  other  property  against  one  W'ho  has  at- 
tached it  as  the  property  of  the  lender,  that  will  be  deemed  a 
ratification  of  the  exchange.^  * 


the  stipulation  that  he  might  do  so  for  rent  in  arrear.  Such  entry  and  taking- 
possession  "were  there  necessarj'  to  vest  the  property  in  the  lessor.  The  present 
case  falls  more  properly  within  the  princiijles  of  the  cases  of  Lewis  v.  Lyman, 
22  Pick.  437,  and  Barrett  v.  Pritchard,  2  Pick.  512.  In  this  case,  as  in  those, 
the  property  in  the  articles  in  controversy  remained  in  the  lessor  until  the  pay- 
ment of  the  rent.  Under  the  form  of  the  lease,  it  required  no  further  act  of  the 
lessor  to  vest  in  him  the  property  in  these  articles,  and  he  may  therefore  hold 
them,  as  against  an  attaching  creditor.  He  had  the  right  of  property,  and  the 
constructive  possession,  and  may  therefore  well  maintain  this  action  for  the  wool 
and  lambs  "  (citing  Smith  v.  Atkins,  18  Vt.  461). 

'  Strong  V.  Adams,  30  Vt.  221. 

*  This  was  an  action  of  trespass  for  a  wagon  which  was  attached  as  the  prop- 
erty of  one  Kimball.  The  plaintiff  had  pledged  a  horse  and  harness  to  Kimball 
for  the  security  of  twenty-one  dollars  and  fifty  cents  advanced  by  him,  with  the 
right  to  sell  the  property  and  pay  over  the  balance  of  the  price  to  the  plaintiff. 
Kimball  exchanged  the  property  for  a  wagon  and  two  dollars  and  fifty  cents  in 
money.  The  court  below  held,  as  matter  of  law,  that  this  vested  the  title  of  the 
Avagon  in  Kimball,  and  that  it  was  immediately  attachable  as  his  property. 
Judgment  having  accordingly  been  rendered  for  the  defendant,  the  Supreme 
Court,  in  setting  it  aside,  said:  "If  Kimball  exceeded  his  authority  in  making- 
the  exchange,  which,  as  the  facts  are  stated,  would  seem  to  be  the  case,  unless 
there  was  something  in  the  evidence  or  course  of  dealing  to  show  that  Kimball 
had  a  larger  discretion  than  an  ordinary  factor,  then  it  would  be  optional  with 
the  plaintiff  cither  to  adopt  or  repudiate  Kimball's  act  in  making  the  exchange. 
And  his  bringing  the  action  is  regarded  as  a  sufficient  ratification  of  the  act 
ordinarily,  as  if  he  had  brought  suit  to  recover  his  onginal  property  it  would 
liave  been  a  repudiation  of  the  exchange.  What  other  facts  may  be  put  in  the 
case  hereafter  we  cannot  anticipate.  It  will,  no  doubt,  be  competent  to  show, 
by  other  evidence,  that  the  plaintiff  did  repudiate  the  act  of  Kimball  in  making 
the  exchange,  or  that  he  did  not  ratify  it  in  a  reasonable  time,  perhaps.  But  as 
there  is  nothing  in  this  case  to  show  any  delay,  or  that  any  time  intervened  be- 
tween the  exchange  and  the  attachment,  and  as  the  decision  of  the  court  goes 
upon  the  ground  that  the  plaintiff  had  no  rights,  either  absolute  or  contingent, 
in  the  property  obtained  by  the  exchange,  we  think  there  should  be  a  new  trial."' 

A  son  has  no  authority  as  such  to  lend  his  father's  property,  and  there  is  no 
presumption  that  such  authority  has  been  given  to  a  son.  It  may  be  shown  that 
authority  to  lend  tools  and  the  like  has  been  given  to  a  son  exjoressly,  or  such  aa 
authority  may  be  inferred  from  the  conduct  of  the  father,  tending  to  show  that 
he  reposed  such  confidence  and  intrusted  such  discretion  in  the  son,  as  by  show- 
ing that  on  other  occasions  the  son  had  lent  the  father's  property  of  a  similar 
kind,  and  the  father,  upon  the  facts  coming  to  his  knowledge,  approved  of  what 


I 


§  526.  GENERAL    KULE.  525 

§  526.  The  purchaser  of  goods  by  bill  of  sale  may  main- 
tain an  action  against  the  vendor  for  appropriating  them, 
though  they  were  not  delivered.  Edwards  v.  Edwards  ^  was 
an  action  of  trespass  for  a  hog.  The  plaintiff  introduced  in 
evidence  a  bill  of  sale  to  him  of  the  hog  in  question,  signed 
by  the  defendant.  It  was  admitted  that  at  the  time  of  ex- 
ecuting the  bill  of  sale  the  defendant  was  the  owner  of  the 
animal,  and  that  he  executed  and  delivered  the  bill  of  sale 
upon  sufficient  consideration,  but  did  not  deliver  the  hog, 
and  that  he  soon  after  killed  it  for  his  own  use.  The  only 
question  raised  was,  whether  the  bill  of  sale,  without  delivery 
of  the  hog,  vested  sufficient  title  in  the  plaintiff'  to  enable 
him  under  the  circumstances  to  maintain  the  action.  The 
plaintiff'  having  recovered  in  the  County  Court,  the  judgment 
was  affirmed  by  the  Supreme  Court.  Where  goods  are  pur- 
chased by  two  persons,  it  is  not  necessary  to  enable  them 
to  join  in  an  action  of  trespass  for  taking  and  carrying  away 
the  goods  that  the  bill  of  sale  should  have  been  made  out  to 
both.  If  made  to  one  who  agreed  to  purchase  for  both,  both 
will  take,  and  by  bringing  the  action  they  show  their  intent 
to  treat  the  goods  as  joint  property.'^ 

he  had  done.  But  without  such  proof,  the  son  stands  in  the  same  position  as  a 
stranger  (Jolmson  v.  Stone,  40  N.  Hamp.  107). 

'  11  Vt.  587. 

*  In  BuUer's  Nisi  Prius,  258,  there  are  two  cases  cited — Baker  v.  Loj-d.  before 
Ch.  J.  Holt,  and  Cowell  v.  Lane,  before  Bailer,  ,J. — in  which  it  was  held  that  if 
a  man  make  a  bill  of  sale  to  one  creditor,  and  afterwards  to  another  creditor,  of 
the  same  property,  and  deliver  possession  to  neither  at  the  time,  and  afterwards 
the  creditor  who  has  the  second  bill  of  sale  gets  the  possession,  and  the  creditor 
having  the  first  bill  of  sale  subsequently  takes  the  property  from  him,  the  latter 
can  maintain  no  action  against  the  former.  The  reason  given  is,  that  though 
both  bills  of  sale  are  fraudulent  against  creditors,  yet  both  bind  the  vendor,  and 
the  elder  title  shall  prevail. 

Kittredge  et  al.  v.  Sumner,  11  Pick.  50,  was  an  action  of  trespass  against  an 
oflScer  for  wrongfully  attacliing  certain  mats,  the  property  of  the  plaintiffs.  It 
appeared  that  the  plaintiffs  and  Hodges  &  Co.  purchased  20,000  mats,  which 
Hodges  &  Co.  agreed  to  store  for  six  mouths  free  of  expense  to  the  plaintiffs, 
they  agreeing  to  pay  their  proportion  of  the  cost  of  removing  the  mats  into 
Hodges  &  Co.'s  loft,  and  the  mats  were  accordinglj"^  removed.  A  few  months 
afterwards  a  new  arrangement  was  made,  and  a  bill  of  sale  given  to  the  i^laintifis 
of  the  wiiole  of  tlie  20,000  mats,  they  agreeing  to  pay  for  their  storage  until  they 
were  fully  paid  for.  At  the  time  of  the  last  contract,  and  previously,  the  plaint- 
iifs  paid  to  Hodges  &  Co.  various  sums  amounting  to  $1,104  50,  which  was  in- 
dorsed on  the  last  bill  of  sale.  The  last  arrangement  was  made  by  Hodges  &  Co. 
to  prevent  the  mats  from   being  attached  by  their  creditors,  but  the  plaintifls 


52G  WHO    MAY   MAINTAIN   THE   ACTION.  §  527. 

§  527.  When  goods  sold  are  not  present  at  the  time,  so 
as  to  be  actually  delivered,  and  there  is  no  symbolical  de- 
livery, and  a  stranger,  or  one  without  legal  right,  takes  the 
property  before  the  vendee,  by  exercising  ordinary  care  and 
diligence,  can  obtain  actual  possession  of  it,  the  law  will  pro- 
tect it  for  the  vendee,  and  by  reasonable  intendment  will 
consider  the  possession  to  be  constructively  in  the  vendee  as 
against  such  stranger.  Accordingly,  w^here  in  an  action  of 
trespass  for  taking  personal  property,  it  appeared  that  the 
plaintiff  w^as  the  hona  fide  purchaser  of  it  on  Saturday,  and 
that  on  Sunday  a  creditor  of  the  vendor,  without  any  legal 
right,  seized  and  carried  the  property  away,  and  so  prevented 
the  plaintiff  from  taking  possession  of  it,  it  was  held  that 
such  creditor  was  a  trespasser,  and  could  not  purge  the  orig- 
inal wrong  by  a  subsequent  attachment  of  the  property,  and 
that  the  measure  of  damages  should  be  the  value  of  the  prop- 
erty taken/  '""     Certain  goods  were  consigned  to  a  commis- 


had  no  knowledge  of  tliis  intent.  It  was  held,  that  no  new  delivery  was  neces- 
sary on  the  second  sale,  the  plaintiffs  having  at  the  time  an  actual  or  constructive 
possession  of  the  mats,  and  that  they  were  entitled  to  recover.  Held,  further, 
that  Hodges  &  Co.  had  not  an  attachable  interest  that  could  be  set  up  by  the 
officer  in  defense  of  the  action,  citing  Holly  v.  Huggeford,  8  Pick.  73. 

In  an  action  of  trespass  for  a  quantity  of  hay  which  the  plaintift',  as  deputy 
sheriff,  had  attached  as  tlie  property  of  one  Woodman,  it  appeared  that  the  de- 
fendant had  purchased  a  bay  of  hay  in  the  barn  of  Woodman,  and  removed  part, 
and  left  the  residue  in  the  bay  in  charge  of  Woodman's  hired  man.  It  was 
held  that  the  plaintifi'  was  entitled  to  recover,  tliere  not  having  been  a  sufficient 
change  of  possession  of  the  hay  to  ])rotect  it  from  the  attachment  (Sleeper  v. 
Pollard,  28  Vt.  709). 

A,  rented  his  farm  and  stock  to  B.  by  a  written  agreement,  B.  to  occupy  two 
years,  and  by  way  of  rent  to  deliver  to  A.  on  the  farm  one-half  of  all  the  crops 
except  such  as  should  be  fed  to  the  stock  on  the  place,  the  crops  to  be  divided 
by  weight  and  measure.  Before  any  portion  of  the  crops  was  delivered  to  A., 
B.  and  C.  carried  them  away  and  consumed  them.  It  was  held  that  A.  had  not 
such  a  title  to  the  crops  in  the  absence  of  delivery  as  to  enable  him  to  maintain 
trespass  against  B.  and  C.  for  the  taking  (Ilurd  v.  Darling,  16  Vt.  377). 

Where  a  permit  to  cut  timber  is  assigned,  the  assignee  may  maintain  trespass 
against  an  officer  for  attaching  the  timber  after  it  is  cut  (Sawyer  v.  Wilson,  61 
Maine,  529). 

'  Parsons  v.  Dickinson,  11  Pick.  352. 

*  Parsons  v.  Dickinson,  supra,  was  an  action  of  trespass  for  taking  and  carry- 
ing away  a  chaise  and  harness.  It  appeared  that  one  Edwards,  being  in  embar- 
rassed circumstances  and  about  to  leave  the  State,  abovit  eleven  o'clock  on 
Saturday  night  called  the  plaintiff  from  his  bed  and  sold  him  the  chaise  and 
harness;  that  the  following  afternoon  or  evening  the  plaintiff  went  to  Edwards' 
house  to  get  the  property,  but  found  it  gone;  that  William  Dickinson,  one  of  tlie 
defendants,  took  it  away  Sunday  afternoon,  and  that  on  Monday  morning  it  was 


§  528.  GENERAL    RULE.  .  527 

sion  merchant  for  sale,  and  he,  after  selling  them,  bought 
them  on  his  own  account,  and  afterward  discoverino- 
that  they  were  defective,  the  original  owner  was  notified  of 
the  fact  and  asrreed  to  take  them  back.  The  factor  accord- 
ingly  charged  the  original  owner  with  them  on  his  books, 
but  the  goods  remained  in  the  factor's  possession.  It  was 
held  that  this  was  suflicient  to  revest  the  property  in  the 
-original  owner,  the  possession  of  the  factor  being  the  posses- 
sion of  his  principal,  and  that  the  latter  might  maintain  tres- 
pass against  a  wrong-doer  for  taking  them.^ 

§  528.  Where  goods  are  assigned  as  security  for  advances 
of  money,  upon  trust  to  permit  the  assignor  to  remain  in  230s- 
session  of  them  until  default  in  payment  at  the  time  stipu- 
lated, and  upon  further  trust  to  sell  them  upon  such  default 
being  made,  the  assignee  has  a  sufficient  possession  to  enable 
him  to  maintain  tresj)ass  against  a  wrong-doer,  such  an  assign- 
ment, though  void  as  against  creditors,  being  good  as  between 
the  parties,  and  as  between  either  party  and  a  stranger.  So 
likewise,  one  who  holds  personal  property  under  a  valid 
assi2:nment  for  the  benefit  of  certain  creditors  of  the  assiajnor, 
may  maintain  an  action  of  trespass  against  a  creditor  not  in- 
cluded  in   the   assignment  who   takes  the  property  away. 

attached  by  Zebiua  Dickinson,  a  deputy  sheriff,  on  a  writ  in  favor  of  William 
Dickinson,  who  was  a  creditor  of  Edwards.  On  the  foregoing  facts,  it  was  held 
that  the  plaintiff  had  sufficient  possession  of  the  property  to  entitle  him  to  main- 
tain the  action.  The  court  said:  "If  this  should  be  considered  as  a  question 
between  a  lona  fide  vendee  and  an  attaching  creditor,  it  would  be  clear  for  the 
latter,  for  the  creditor  attached  the  goods  before  the  vendee  had  perfected  his 
title  by  having  an  actual  delivery  of  them  to  him.  The  case  cited  of  Lanfear  v. 
Sumner,  17  Mass.  110,  would  be  conclusive  upon  the  matter.  The  defendant, 
William  Dickinson,  claims  in  virtue  of  an  attachment  made  for  him  by  the  other 
defendant,  Zebina  Dickinson,  and  they  contend  that  the  attachment  was  made 
on  Monday  after  tlie  sale  to  the  plaintiflF  on  Saturday,  and  before  the  vendee  ob- 
tained the  actual  possession  of  the  projierty.  But  the  plaintiff  contends  that  the 
defendants  are  not  in  a  situation  to  avail  themselves  of  the  rule  laid  down  in  the 
case  of  Lanfear  v.  Sumner,  because  the  creditor  took  the  property  on  Sunday, 
after  the  sale,  without  any  legal  right,  and  removed  and  secreted  it  from  the 
place  where  the  vendee  was  to  have  received  it.  And  the  action  is  brought  to 
recover  damages  for  that  trespass.  The  officer  cauuot  be  considered  to  be  in  a 
more  favorable  situation  than  the  creditor  in  whose  favor,  and  by  wliose  direc- 
tion, the  attachment  was  made,  immediately  after  the  expiration  of  the  Sun- 
day. Now  it  is  very  clear,  that  the  sale  as  between  the  vendor  and  vendee  was 
good  before  the  delivery.'' 

'  Holly  V.  Huggerford,  8  Pick.  73. 


528  WHO    MAY   MAINTAIN   THE   ACTION.  §  529. 

The  owner  of  two  horses  agreed  with  certain  of  his  creditors 
that  a  third  person,  who  then  had  the  custody  of  the  horses, 
should  keep  them  till  a  certain  day  in  the  following  week, 
and  then  sell  them  at  auction  for  the  benefit  of  said  credit- 
ors, the  avails  to  be  applied  first  to  extinguish  a  certain 
demand  and  the  balance  to  be  paid  to  the  other  creditors 
according  to  the  order  of  their  attachments.  The  person 
who  had  charge  of  the  horses  was  notified  of  the  ai'range- 
ment,  and  agreed  to  execute  it  on  his  part.  He  employed 
one  of  said  creditors  to  keep  the  horses  for  him  till  the  day 
of  sale ;  but  previous  thereto,  another  creditor  attached  them 
and  took  them  away.  _It  was  held  that  the  contract  under 
which  said  third  person  was  appointed  to  sell  the  horses  was 
in  substance  an  assignment  of  the  property  for  the  satisfac- 
tion of  particular  debts ;  and  being  founded  on  a  legal  and 
sufficient  consideration,  and  accompanied  with  actual  posses- 
sion, was  entitled  to  protection  against  the  interference  of 
other  creditors  ;  and  that,  therefore,  he  might  maintain  tres- 
pass for  such  attachment.^ 

2.  In  case  of  goods  talceii  from  officer. 

§  529.  An  officer  after  levying  upon  goods  and  chattels, 
has  a  sufficient  property  in  them  to  enable  him  to  maintain 
trespass  against  any  person  who  takes  them  away ;  ^  but 
not  if  the  process  under  which  he  claims  to  hold  the  goods 
is  void;^  nor  where  he  has  consented  to  their  removal;^  nor 
if,  after  seizing  the  goods,  he  has  abandoned  them,  thereby 
losing  his  lien.^  But  the  officer's  neglect  to  sell  the  property 
pursuant  to  his  advertisement,  will  not  defeat  his  right  of 
action  against  a  stranger  for  the  disturbance  of  his  posses- 
sion; ^  nor  the  fact  that  the  execution  has  not  been  returned, 
the  property  being  taken  from  the  officer's  possession  before 


'  Mason  v.  Hidden,  6  Vt.  600. 

"-  Lockwood  V.  Bull,  1  Cowcn,  323;  Ca?her  v.  Peterson,  1  South,  317. 

'  Earl  V.  Camp,  16  Wend.  563.  *  Ibid. 

''  Tain  tor  v.  Williams,  7  Conn.  371.  '  Earl  v.  Camp,  supra. 


§  529.  IN   CASE   OF   GOODS    TAKEN  FROM   OFFICER.  529 

the  return  day ;  ^  nor  that  the  property  attached  has  been 
assigned  by  the  debtor  to  the  creditor  in  discharge  of  the 
judgment,  the  officer's  liability  for  the  property  still  con- 
tinuing ;  ^  nor  that  the  creditor  agreed  with  the  officer  who 
was  about  to  attach  the  property,  that  he  would  protect  him 
from  all  liability.^  *  The  defendant  cannot  be  admitted  to 
prove  that  the  goods  were  mortgaged  previous  to  the  levy 
or  that  they  belonged  to  a  third  person,  unless  he  connects 
himself  with  the  outstanding  title  ;  nor  can  he  be  allowed  to 
show  that  the  goods  were  exempt,  such  an  objection  being 
proper  only  for  the  defendant  in  the  process/  But  an  officer 
cannot  maintain  an  action  founded  on  a  right  acquired  after 
a  return  of  the  execution  by  which  he  has  by  order  of  the 
plaintiff  formally  released  the  levy.  This  being  an  official 
act,  must  be  held  to  have  subverted  all  the  rights  of  the 
officer  acquired  by  the  levy  thus  explicitly  and  absolutely 
abandoned,  as  well  as  the  rights  of  the  plaintiff  which  grew 
out  of  the  levy.^  f 


'  Sewell  V.  Harrington,  11  Vt.  141.  ^  Fletcher  v.  Cole,  26  Vt.  170. 

'  Huntley  v.  Bacon,  15  Conn.  367.  *  Gibbs  v.  Chase,  10  Mass.  125. 

'  Marsh  v.  White,  3  Barb.  518.  , 

*  In  Huntley  v.  Bacon,  supra,  which  was  an  action  of  trespass  de  lonis 
asportatis,  brought  by  an  officer  for  the  taking  away  of  property  which  he  held 
under  attachment,  the  defendants  claimed  that  they  had  proved  that  the  attach- 
ing creditors  or  some  of  them  for  whom  the  officer  had  attached  the  property  in 
question  had  agreed  to  save  him  harmless  for  not  removing  the  property  at- 
tached ;  and  they  urged  that  the  interest  of  the  plaintiff  in  the  cause  of  action 
was  thereby  extinguished.  The  court  said:  "The  claim  is  a  novel  one.  If 
sanctioned,  it  goes  to  the  extent  of  holding  that  an  officer  can  in  no  case  recover 
for  a  trespass  committed  upon,  or  even  for  the  destruction  of  property  attached 
by  him,  if  the  circumstances  of  the  case  show  that  he  is  not  liable  to  the  attach- 
ing creditor.  This  doctrine  cannot  be  supported  by  principle  nor  by  authority. 
An  officer  is  never  liable  if  he  has  followed  the  law  and  has  been  guilty  of  no 
culpable  negligence ;  and  it  will  not  do  to  say  that  in  all  cases  where  the  officer 
is  justified  by  the  law,  a  stranger — a  wrong-doer — may  invade  his  possession  and 
take  aw-ay  or  destroy  the  property  thus  in  his  legal  custody.  The  gist  of  the 
action  of  trespass  is  the  force  and  injury  to  the  lawful  possession  of  the 
plaintiff";  and  the  wrongful  act  of  a  trespasser  is  not  in  any  wdj  modified,  ex- 
tenuated, or  excused  by  reason  of  any  agreement  which  such  plaintiff,  if  an 
officer,  may  have  made  with  attaching  creditors." 

t  In  all  cases  in  which  a  deputy  sheriff  has  legally  done  his  duty,  and  the 
law  visits  on  him  a  continued  and  ultimate  liability,  the  same  law  must  sustain 
him  in  an  action  necessary  to  his  protection.  Therefore,  if  a  deputy  sheriff 
attach  property  and  take  it  into  his  possession,  and  it  is  unlawfully  taken  from 
him,  he  must  have  an  action  in  his  own  name,  as  he  is  ultimately  answerable 
(Stanton  v.  Hodges,  6  Vt.  G4).     But  in  New  York  it  was  held  that  he  could  not 

Vol.  I.— 34 


530  WHO  MAY  MAINTAIN  THE  ACTION.        §§  530,  531. 

§  530.  In  such  action  it  is  enough  for  the  officer  to  show, 
as  against  strangers,  the  seizure  under  the  execution,  without 
producing  the  judgment ;  possession  of  the  goods  thus  ac- 
quired by  the  officer  being  sufficient  to  enable  him  to  main- 
tain trespass  against  a  third  party  for  taking  them  away 
without  right.^  But  if  the  action  is  brought  by  the  officer 
for  the  benefit  of  the  phiintiff  in  an  attachment,  the  judgment 
must  be  proved.^  And  the  same  must  be  done  where  the 
officer  has  a  mere  constructive  possession  created  by  the 
levy  of  an  execution  in  an  action  for  the  benefit  of  the  exe- 
cution creditor.'^ 

3.    Wliere  goods  are  taken  from  a  servant. 

§  531.  When  chattels  are  taken  from  a  servant,  they  are 
taken  from  the  legal  possession  of  his  master,  who  alone  can 
maintain  trespass  and  recover  damages  against  the  taker.* 

maintain  an  action  in  his  own  name  against  persons  who  wrongfully  took  prop- 
erty from  him  which  he  had  seized  by  virtue  of  an  execution  (Terwilliger  v. 
Wheeler,  35  Barb.  620). 

Although  the  absolute  owner  of  property,  or  an  officer  who  has  levied  on  it, 
and  is  therefore  a  special  owner,  may  maintain  an  action  of  trespass  for  an  un- 
lawful intermeddling  with  such  property  by  a  stranger — and  it  is  no  defense  in 
the  latter  case  that  there  may  be  property  enough  remaining  to  satisfy  the  ex- 
ecution— yet  it  is  otherwise  when  the  suit  is  brought  not  for  a  direct  injury  to 
the  property  itself,  but  to  recover  the  consequential  damages  sustained  by  a 
judgment  and  execution  creditor,  occasioned  by  the  removal  of  property  upon 
which  he  had  acquired  a  lien  by  the  levy  of  his  execution.  "  For  example,  if  a 
sheriff  levy  upon  property  to  the  value  of  $300  to  satisfy  an  execution  of  $100, 
and  a  stranger  should  seize  and  convert  a  part  of  it  worth  $50,  it  cannot  be 
doubted  that  the  oflicer  might  recover  the  value  of  the  property  thus  wrongfully 
taken  in  trespass  or  trover.  But  if  the  plaintiff  in  the  execution  should  sue  an 
individual  to  whom  the  general  owner  (the  defendant  in  the  execution)  had 
transferred  a  part  of  the  property  subsequent  to  the  levy,  for  removing  it  he 
must  prove  that  he  necessarily  suffered  damage  by  the  act  complained  of;  that 
is,  that  there  was  not  property  enough  left  to  satisfy  liis  execution.  Thus  in 
the  case  of  Lane  and  Wife  v.  Hitchcock,  14  Johns.  213,  it  was  held  that  a  mort- 
gagee could  not  recover  against  one  who  had  diminished  the  lien  of  his  mort- 
gage by  removing  a  building  from  the  premises  bound  by  the  mortgage,  unless 
he  could  show  that  he  suffered  damages  as  a  necessary  consequence  of  the  act. 
And  he  was  required  to  show,  not  only  that  the  removal  of  the  building  left  the 
premises  a  scanty  security,  l)ut  that  the  mortgagor,  who  was  personally  bound, 
was  insolvent.  In  the  progress  of  this  opinion,  the  court  comment  upon  the 
case  of  Yates  v.  Joyce,  11  Johns.  140,  and  say  that  in  that  case  the  injury  was 
shown  to  have  been  the  occasion  of  inevitable  damage  to  the  plaintiff,  and  thus 
distinguish  it  from  the  one  then  under  consideration"  (Gridley,  J.,  in  Marsh  v. 
White,  3  Barb.  518). 

'  Smith  V.  Burtis,  6  Johns.  197.  "  Earl  v.  Camp,  16  Wend.  563. 

^  15  Conn.  267.  ■•  Brownell  v.  Manchester,  1  Pick.  232. 


§  532.  IN  THE  CASE  OF  A  CORPORATION.  531 

Where  the  owner  of  goods  requested  a  cartman  to  carry 
them  to  his  own  house  to  keep  for  him  until  the  next  day, 
it  was  held  that,  as  the  cartman  had  no  interest  or  claim  to  hold 
the  goods  coupled  with  his  possession,  the  rule  of  law  ap- 
plied that  the  general  property  drew  after  it  the  possession, 
and  that  the  owner  of  the  goods  might  therefore  maintain  an 
action  of  trespass  against  a  third  person  for  taking  them 
away.^  * 

4.  In  the  case  of  a  covporation. 

§  582.  The  possession  of  an  officer  of  a  corporation  is  the 
possession  of  the  corporation,  and  when  chattels  belonging 
to  the  corporation  are  taken  from  him,  the  corporation  is 
alone  entitled  to  sue  for  and  recover  damages  for  the  taking, 
unless  the  officer  is  authorized  by  statute  to  sue  in  his  own 
name.^  f  So  on  the  other  hand,  trespass  will  lie  against  a 
corporation  for  seizing  goods  and  appropriating  them;^ 

'  Thorp  V.  Burling,  11  Johns.  285.  "  Perkins  v.  Weston,  3  Cusb.  549. 

=  MaiincI  V.  Monmouthshire  Canal  Co.  2  Dowl.  N.  S.  113;  1  Car.  &  M.  606. 

*  Stanley  v.  Gaylord,  1  Cush.  536,  was  an  action  of  trespass  for  taking  and 
driving  away  a  cow.  The  cow  belonged  to  the  plaintiff's  intestate,  and  was  in 
the  possession  of  one  Franklin,  without  any  authority  in  him  as  against  the  in- 
testate, to  retain  or  dispose  of  her.  The  defendant  took  the  cow,  claiming  her 
under  a  mortgage  made  to  him  by  Franklin.  No  evidence  seems  to  have  been 
given  of  a  delivery  by  Franklin,  or  any  question  made  at  the  trial  concerning 
it.  The  court  said:  "  If  Franklin  was  the  bailee  of  the  plaintiff's  intestate,  the 
taking  by  the  defendant,  without  delivery,  subjected  him  to  an  action  of  tres- 
pass by  the  intestate;  and  if  Franklin  was  the  mere  servant  of  the  intestate,  the 
defendant  became  a  trespasser  by  taking  the  cow,  even  though  Franklin  had 
delivered  her  to  him..  The  question  is  whetlier  the  plaintiff  could  maintain  trover 
in  this  instance,  without  first  demanding  a  return  of  the  cow.  If  he  could,  then 
he  may  maintain  trespass;  for  whenever  the  taking  of  goods  is  wrongful,  the 
taking  is  a  conversion,  and  trespass,  replevin,  and  trover  without  a  demand,  are 
concurrent  remedies  for  the  owner,  if  lie  has  the  right  of  immediate  possession." 
Wilde,  J.,  dissenting,  said:  "  I  am  of  opinion  that  the  defendant  is  not  liable  in 
this  form  of  action;  nor  would  he  be  liable  in  an  action  of  trover,  for  he  has 
not  been  guilty  of  a  conversion  of  the, property.  The  conversion  was  by  Frank- 
lin, against  whom  an  action  of  trover  might  be  well  maintained;  and  if  he  is 
not  able  to  respond  in  damages,  the  loss  ought  to  be  borne  by  the  plaintiff,  who 
confided  tlie  property  to  his  custody,  rather  than  by  the  defendant  who  has  been 
guilty  of  no  wrong.  But  no  loss  need  be  sustained  by  the  plaintiff",  for  after  a 
demand  of  the  defendant  and  his  refusal  to  restore  the  property,  an  action  of 
replevin  in  the  detinet  would  well  lie." 

For  liability  of  master  for  wrongful  acts  of  servant,  see  ante^  §§  42,  et  seg. 

t  Perkins  v.  Weston,  supi-a,  was  an  action  of  trespass  for  taking  and  carrying 
away  school  registers.  At  the  trial  in  the  Common  Pleas,  it  appeared  that  the 
defendants  claiming  to  be  the  school  committee  took  the  registers  from  the 


532  WHO   MAY  MAINTAIN  THE  ACTION.  §  533^ 

5.    Where  the  goods  belonged  to  a  jperson  deceased. 

§  533.  Where  personal  property  which  belonged  to  the 
testator  at  the  time  of  his  death  is  afterward  tortiously  taken 
or  injured,  as  it  vests  on  the  death  of  the  testator  in  his  per- 
sonal representative,  the  wrong  is  done  to  him,  and  he  can 
sue  in  his  own  name  without  calling  himself  executor.^  *    So 

plaintiffs.  The  defendants  insisted  that  the  registers  were  the  property  of  the 
town,  and  that  plaintiffs  had  no  such  property  in  them  as  entitled  them  to  main- 
tain the  action.  The  judge  so  held,  and  a  verdict  was  found  for  the  defendants. 
The  Supreme  Court  said:  "  We  are  of  opinion  that  the  ruling  was  right.  The 
school  committee  has  no  property  general,  or  qualified,  in  the  school  registers, 
and  no  such  possession  thereof,  distinct  from  the  possession  of  the  town,  as  is 
required  by  law  in  order  to  enable  them  to  maintain  this  action  and  recover  dam- 
ages to  their  own  use,  but  only  the  custody  or  charge  of  the  registers  as  ofiicers 
and  servants  of  the  town."  The  law  in  Massachusetts,  when  the  foregoing  ac- 
tion was  brought,  was  as  follows :  By  the  St.  of  1838,  ch.  105,  the  board  of 
education  were  directed  to  prescribe  a  blank  form  of  a  register  to  be  kept  in 
schools,  and  the  secretary  of  the  State  was  directed  to  forward  copies  of  the 
same  to  the  school  committees  who  were  directed  to  cause  registers  to  be  faith- 
fully kept,  according  to  the  form  prescribed.  By  St.  1845,  ch.  100,  the  secretary 
of  the  State  was  directed  to  cause  blank  school  returns  and  registers  to  be  for- 
warded to  the  sheriffs  of  the  several  counties,  who  were  directed  to  forward  them 
to  the  town  clerks  of  the  several  towns;  and  by  St.  1845,  ch.  157,  the  said  secre- 
tary was  directed  to  transmit  register  books  sufficient  to  last  for  five  years  or 
more,  instead  of  the  single  sheets  for  registers  which  were  previously  transmitted ; 
and  it  was  also  enacted  that  no  school  teacher  should  be  entitled  to  receive  pay- 
ment for  his  services,  until  the  register  for  his  school,  properly  filled  up  and  com- 
pleted, should  be  deposited  with  the  school  committee,  or  with  some  other  per- 
son designated  by  them  to  receive  it. 

'  Patchen  v.  Wilson,  4  Hill,  57. 

*  But  this  is  not  the  case  where  the  executor  sues  on  a  contract  made  with 
the  testator.  There  he  must  necessarily  sue  in  his  representative  character;  and 
this  is  so,  although  the  time  for  payment  or  performance  had  not  arrived  when 
the  testator  died.  In  the  case  of  a  chattel,  the  representative  may  sue  in  lii& 
own  name,  and  then  use  the  letters  testamentary  as  a  part  of  his  claim  of  title. 
But  except  upon  a  note  payable  to  bearer,  the  representative  cannot  sue  on  a 
contract  made  with  his  testator  without  calling  himself  executor. 

In  Keniston  v.  Little,  10  Fost.  318,  the  defendant,  a  deputy  sheriff,  seized 
the  cattle  of  the  plaintifi'  upon  an  execution  against  him,  and  sold  them  and 
applied  the  proceeds  in  discharge  of  the  execution.  The  question  was,  whether 
the  officer  could  justify  the  taking.  It  was  contended  by  the  plaintiff  that,  as 
the  judgment  recited  in  the  execution  was  "against  Benjamin  C.  Keniston,  of, 
&c.,  administrator  of  the  estate  of  James  ^I.  Knowltcu,  late  of,  &c.,  deceased," 
it  was  a  judgment  against  the  plaintiff  in  his  capacity  of  administrator,  and  the 
precept  to  cause  the  sum  recovered  '•  to  be  levied  of  the  goods,  chattels,  or 
lands  of  said  debtor,"  was  limited  to  the  goods,  chattels,  or  lands  of  the  debtor  as 
administi'ator  of  Kuowlton.  If  this  view  was  correct,  it  was  clear  that  the  officer 
could  not  justify  a  levy  upon  the  private  estate  of  the  administrator,  because 
his  precept  gave  him  no  authority  to  levy  upon  anything  except  the  estate  of  the 
intestate.  It  was  held  that  the  execution  was  to  be  regarded  as  running  against 
the  plaintifi"  in  his  individual  character,  and  his  own  goods  and  estate  were 
liable  to  be  levied  upon  under  it.  The  court  said:  ''It  is  contended  that  an 
execution  for  costs  against  an  administrator,  should  run  not  against  the  goods 
of  the  administrator  himself,  but  asjainst  the  goods  of  the  deceased  in  his  hands 


§  533.    WHERE   GOODS   BELONGED   TO   A  PERSON  DECEASED.    533 

likewise,  an  administrator  may  maintain  an  action  of  tres- 
pass for  a  wrongful  seizure  of  the  intestate's  goods  made  be- 
tween the  death  of  the  intestate  and  the  grant  of  letters  of 
administration ;  and  a  demand  is  not  necessary  prior  to  the 
commencement  of  the  action.^  In  England,  previous  to  the 
statute  of  4  Edw.  Ill,  no  action  ex  delicto  would  survive  to 
the  personal  representative.  That  statute  authorized  an  ex- 
ecutor to  maintain  an  action  of  trespass  for  chattels  taken 
and  carried  away  in  the  life-time  of  his  testator ;  and  the 
principle  by  an  equitable  and  somewhat  liberal  construction 
of  the  statute  extended  to  all  cases  of  injury  to  personal 
property.  So  on  the  other  hand,  whenever  the  property 
taken  by  the  testator  or  intestate  was  converted  to  his  own 
use,  so  as  to  become  a  part  of  his  assets,  an  action  in  some 
form  would  lie  against  his  personal  representative.-  *    Where 


to  be  administered.  If  this  is  a  proposition  universally  true,  and  without  any 
exception,  it  might  furnish  ground  for  aji  argument  that  the  execution  must 
have  been  issued  in  this  case,  either  erroneously  or  irregularly.  If  there  is  any 
case  in  which  an  execution  may  properly  issue  against  the  proper  goods  of  an 
administrator,  then  the  execution  here  is  well  enough  so  far  as  the  officer  is  con- 
cerned. He  is  not  bound  to  look  beyond  the  face  of  the  execution,  and  if  there 
is  nothing  there  which  shows  it  to  have  issued  improperly,  he  is  not  bound  to 
inquire  further.  Where  the  cause  of  action  is  alleged  to  have  arisen  after  the 
death  of  the  testator  or  intestate,  and  the  executor  or  administrator  might  sue 
in  his  own  right,  without  describing  himself  as  such,  judgment  may  well  be 
entered  against  him  de  bonis  jjropriis  ;  the  allegation  that  he  was  executor  or  ad- 
ministrator being  considered  in  such  case  as  a  descriptio  personce,  so  that  upon 
the  face  of  the  execution  there  was  nothing  that  indicated  any  error  or  irregu- 
larity. If  the  process  here  did  issue  either  erroneously  or  irregularly,  the  court 
having  jurisdiction,  it  is  not  void,  but  is  at  most  voidable.  If  erroneous,  a  party 
even  may  justify  under  it  whatever  was  done  by  virtue  of  it  while  it  was  in 
force;  and  if  irregular,  it  is  a  justification  for  the  party  until  set  aside.  Much 
more  must  it  be  so,  in  the  case  of  an  officer  "  (citing  Blanchard  v.  Goss,  3  N. 
Hamp.  491 ;  Pilsbury  v.  Hubbard,  10  lb.  224). 

'  Hutchins  v.  Adams,  3  Maine,  161;  1  Chitty's  PI.  166;  Tharpe  v.  Stallwood, 
5  Man.  &  G.  760. 

*  Hambly  v.  Trott,  Cowp.  .37 1 ;  Mellen  v.  Baldwin,  4  Mass.  480;  Cravath  v. 
Plympton,  13  lb.  454;  Holmes  v.  Moore,  5  Pick.  257;  Towle  v.  Lovet,  6  Mass. 
394. 

*  By  25  Edw.  3,  c.  5,  the  benefit  of  the  statute  is  extended  to  executors  of 
executors. 

The  New  York  statute  (Rev.  Sts.  5th  ed.  p.  202,  §  4),  provides  that  execu- 
tors and  administrators  shall  have  actions  of  trespass  against  any  person  who 
shall  have  wasted,  destroyed,  taken  or  carried  away,  or  converted  to  his  own 
use,  the  goods  of  their  testator  or  intestate  in  his  life-time.  They  may  also 
maintain  actions  for  trespass  committed  on  the  real  estate  of  the  deceased  in  his 
life-time.  This  New  York  statute  was  borrowed  from  4  Edw.  3d,  ch.  7,  which 
had  made  a  similar  provision,  by  the  equity  and  liberal  construction  of  whicli  it 


534  WHO  MAY   MAINTAIN  THE   ACTION.  §  534. 

an  administrator  refuses  or  neglects,  upon  request  made,  to 
allo^v  property  to  be  appraised  and  set  apart  for  the  widow, 
she  cannot  maintain  trespass  against  him,  the  widow  having 
neither  a  general  or  special  property  in  any  particular  goods 
until  after  the  election  and  appraisement.^  Although  the 
goods  of  a  testator  in  the  hands  of  an  executor  cannot  be 
seized  under  an  execution  against  the  executor  to  satisfy  a 
judgment  debt  due  from  the  executor  in  his  own  right ;  yet 
if  the  executor  has  committed  a  devastavit,  and  the  goods 
have  been  converted  to  his  own  use,  the  executor  cannot 
justify  his  own  misconduct  by  saying  that  the  goods  do  not 
belong  to  him,  but  to  his  testator.^ 

0.  Whe?'e  propetiy  is  'mortgaged. 

§  534.  By 'the  general  rules  of  law,  a  mortgage  of  goods 
is  a  transfer  defeasible,  indeed,  on  a  condition  subsequent, 
still  a  transfer  which  vests  the  general  property  in  the  mort- 
gagee. When  there  is  no  express  stipulation  to  the  contrary, 
the  right  of  possession  follows  the  right  of  property,  and  the 
mortgagee  may  maintain  an  action  of  trespass  against  one 
who  wrongfully  takes  it  away,  without  giving  notice  to  the 

■was  extended  to  almost  every  injury  done  to  the  personal  estate  of  the  testator 
before  his  death. 

The  New  York  statute  further  provides  that  "any  person,  or  his  personal 
representatives,  shall  have  actions  of  trespass  against  the  executor  or  adminis- 
trator of  any  testator  or  intestate  who  in  his  life-time  shall  have  wasted,  de- 
stroyed, taken  or  carried  away,  or  converted  to  his  own  use,  the  goods  or  chat- 
tels of  any  such  person,  or  committed  any  trespass  on  the  real  estate  of  any  such 
person.  The  executors  and  administrators  of  every  person  who  as  executor 
either  of  right  or  in  his  own  wrong,  or  as  administrator,  shall  have  wasted  or 
converted  to  his  own  use  any  goods,  chattels  or  estate  of  any  deceased  person, 
shall  be  chargeable  in  the  same  manner  as  their  testator  or  intestate  would  have 
been,  if  living  "  (Rev.  Sts.  of  N.  Y.  6th  ed.  p.  202,  §§  5  and  6).  "For  wrongs 
done  to  the  property,  rights,  or  interests  of  another,  for  which  an  action  might 
be  maintained  against  the  wrong-doer,  such  action  may  be  brought  by  the  per- 
son injured,  or  after  his  death  by  his  executors  or  administrators  against  such 
wrong-doer,  and  after  his  death  against  his  executors  or  administrators,  in  the 
same  manner  and  with  the  like  effect  in  all  respects  as  actions  founded  upon 
contracts.  But  the  preceding  section  shall  not  extend  to  actions  for  slander,  for 
libel,  or  to  actions  for  assault  and  battery,  or  false  imprisonment,  nor  to  actions 
on  the  case  for  injuries  to  the  person  of  the  plaintiff  or  to  the  person  of  the  tes- 
tator or  intestate  of  any  executor  or  administrator"  (Ibid.  p.  746,  §§  1,  2). 

'  Neely  v.  McCormick,  25  Penn.  St.  R.  255. 

^  Farr  v.  Newman,  4  T.  R.  G21 ;  Gaskell  v.  Marshall,  1  Vi.  &  Rob.  132;  Fen- 
wick  V.  Laycock,  2  Q.  B.  110;  Quick  v.  Staines,  1  B.  &  P.  293. 


§  535.  WHERE    PROPERTY  IS  MORTGAGED.  535 

mortgagor  or  person  in  possession  of  his  intention  to  foreclose 
the  mortgage ;  ^  and  such  action  may  be  brought,  even  though 
the  debt  for  which  the  mortgage  was  given  has  not  become 
due.*^  In  Kentucky,  the  equity  of  redemption  in  a  slave  hav- 
ing been  sold  under  execution,  and  the  slave  delivered  by  the 
sheriff  to  the  purchaser,  the  agent  of  the  mortgagee  seized  the 
slave.  In  an  action  of  trespass  therefor  by  the  purchaser 
against  the  agent,  it  was  held  that,  in  the  absence  of  proof  of 
a  right  of  possession  by  agreement  in  the  mortgagor,  the 
plaintiff  was  not  entitled  to  recover.^  In  a  case  in  New 
York,  a  mortgage  of  personal  property  provided  that  the 
mortgagee  might  take  possession  and  sell  whenever  he 
deemed  himself  insecure.  It  was  lield  that  the  mortgagor 
was  a  mere  tenant  at  sufferance,  and  that  a  sheriff  who  seized 
the  property,  by  virtue  of  an  execution,  with  notice  of  the 
mortgage,  and  after  demand  of  the  property  by  the  mort- 
gagee, rendered  himself  liable  to  damages  in  an  action  against 
him  by  the  mortgagee.* 

§  535.  Althougb  the  mortgage  be  payable  on  demand, 
yet,  as  between  the  mortgagee  and  a  wrong-doer,  no  demand 
is  necessary,  unless  required  by  the  statute.^  *     And  if  it  be 

'  Brackett  v.  Bullard,  12  Mete.  308. 

'  Woodruff  V.  Halsey,  8  Pick.  333 ;  Foster  v.  Perkins,  42  Maine,  168. 

=  Swigert  v.  Thomas,  7  Dana,  220.  *  Farrell  v.  Hildreth,  38  Barb.  178. 

"  Brown  v.  Cook,  3  E.  D.  Smith,  123 :  Cassedy  v.  Hunt,  N.  Y.  Common  Pleas, 
June  8th,  1844;  Delano  v.  Thurnell,  lb.  Feb.  1842. 

*  Where  goods  ■which  were  mortgaged  were  seized  under  an  attachment 
against  the  mortgagor,  and  the  demand  and  notice  required  l>y  the  statute  were 
given  by  the  mortgagee,  and  the  attachment  was  afterwards  dissolved  by  pro- 
ceedings in  insolvency  against  the  mortgagor,  but  the  otRcer  proceeded  notwith- 
standing to  sell,  it  was  held,  in  an  action  of  trespass  by  the  mortgagee  against 
the  officer,  that  the  plaintiff  was  entitled  to  damages  to  the  value  of  the  property 
at  the  time  of  the  taldng,  whether  it  had  been  claimed  by  the  assignee  in  insolv- 
ency or  not  (Codman  v.  Freeman,  3  Cush.  306).  Shaw,  C.  J. :  "The  case  stands 
thus:  By  force  of  the  mortgage,  the  plaintiffs  became  owners  of  the  property  as 
against  the  mortgagor,  with  a  right  of  present  possession,  by  a  defeasible  title, 
indeed,  still  by  a  title  which  made  tlicm  owners  until  defeated.  The  sheriflF 
takes  them  under  claim  of  a  right  to  attach  them  in  behalf  of  creditors;  but  that 
attachment  is  dissolved,  and  then  the  plaintiffs  have  the  same  right  against  the 
officer  as  they  would  liave  against  any  other  stranger;  and  upon  recovering  dam- 
ages, they  are  entitled  to  the  full  value.  We  are  strongly  inclined  to  think  that, 
independently  of  this  dissolution  of  the  attachment  by  insolvency,  the  result 
■would  have  been  the  same;  because,  from  and  after  the  plaintiffs'  notice  of  their 
mortgage  and  demand  on  the  officer — neither  the  officers  nor  the  attaching  cred- 


536  WHO   MAY  MAINTAIN   THE   ACTION.  §  535. 

agreed  between  the  mortgagor  and  mortgagee  that,  upon  de- 
fault made  in  payment,  the  goods  shall,  on  demand,  be  deliv- 
ered to  the  latter,  an  action  of  trespass  may  be  maintained 
by  the  mortgagee  against  a  person  who,  after  the  expiration 
of  the  time  of  payment,  removes  the  goods,  without  a  previ- 
ous demand  on  him  for  them.  In  an  action  of  trespass  for 
taking  goods,  the  plaintiff  claimed  title  to  them  under  a 
mortgage  from  one  Clark,  dated  in  February,  made  to  secure 
a  note  payable  one  year  from  the  first  of  the  following  April. 
The  defendant  claimed  the  goods  under  a  bill  of  sale  of  them, 
given  to  him  subsequent  to  the  execution  of  the  mortgage,  for 
a  debt  which  Clark  OAved  him,  "  to  have  and  to  hold  the  same 
to  him,  and  their  use  and  benefit  forever ;  said  property  to 
remain  in  my  (Clark's)  possession  until  called  for  by  said 
Knox,  and  then  to  be  delivered  up  to  him  free  of  expense." 
It  was  proved  that,  on  the  13th  of  March,  about  a  week  after 
the  delivery  of  the  foregoing  bill  of  sale,  the  plaintiff  and 
Clark  agreed,  by  an  indorsement  made  on  the  mortgage  and 
note,  that  the  note  should  be  paid  on  the  first  day  of  the 
next  May,  and  in  case  the  note  was  not  then  paid,  that  Clark 
would  deliver  the  goods  to  the  plaintiff  on  that  day,  or  at 
any  subsequent  j^eriod  when  the  plaintiff  should  see  fit  to 
demand  the  same.  It  "was  further  proved  that,  shortly  after 
the  expiration  of  the  time  last  above  mentioned,  the  defend- 
ant took  said  goods  and  conveyed  them  in  the  night  into  the 
State  of  Connecticut,  in  order  to  secrete  the  same  from  the 
plaintiff  and  defeat  his  lien.  All  of  the  papers,  excepting  the 
note,  were  duly  recorded  in  the  ofiice  of  the  clerk  of  the  town 
where  Clark  resided.  It  was  held  that  the  action  would  lie 
without  proving  a  demand  on  the  defendant  for  the  prop- 
erty.^ ^ 

itors  having  made  anj'  tender — the  holding  was  Tprongful,  and  the  plaintiffs  be- 
came entitled  to  the  full  value,  as  a  substitute  for  the  goods  which,  by  relation, 
were  thus  unlawfully  taken  from  them.  But,  as  the  fact  of  the  dissolution  of  the 
attachment  makes  the  case  clear  of  difHculty,  we  have  preferred  putting  our  de- 
cision on  that  ground"  (citing  Pomeroy  v.  Smith,  17  Pick.  85). 

'  Boise  V.  Knox,  10  Mete.  40. 

*  In  Boise  V.  Knox,  sujira,  the  court  said:  "The  mortgage  was  an  actual, 
though  conditional,  transfer  and  conveyance  of  the  cattle  and  goods,  by  which 


§  536.  WHERE   PROPERTY  IS   MORTGAGED.  537 

§  536.  If  it  be  agreed  between  the  mortgagor  and  mort- 
gagee that  the  former  shall  retain  possession  of  the  goods, 
but  in  case  they  are  attached  by  another  creditor,  that  then 
the  mortgagee  shall  have  the  right  to  immediate  possession, 
an  oiScer  who  removes  them,  under  an  attachment  against 
the  mortgagor,  will  be  liable  as  a  trespasser.  In  Welch  v. 
Whittemore,^  the  plaintiff,  in  support  of  the  action,  relied 
upon  a  mortgage  of  the  goods  in  question  from  Wm.  F. 
Welch  to  him,  to  secure  the  payment  of  a  promissory  note, 
w^hich  had  not  arrived  at  maturity  at  the  time  of  the  alleged 
taking  by  the  defendant.  The  mortgage  provided  that,  until 
default  of  the  mortgagor  to  ])aj  the  note  according  to  its 
tenor,  he  might  retain  possession  of  the  property  and  use  and 
enjoy  the  same ;  "  but  if  the  same  or  any  part  thereof  shall 
be  attached  at  any  time  before  payment,  <fec.,  by  any  other 
creditor  or  creditors  of  the  said  Wm.  F.  Welch,  then  it  shall 
be  lawful  for  the  said  John  Welch,  his  executors,  tfec,  to  take 
immediate  possession  of  the  w^hole  of  said  granted  property 
to  his  and  their  own  use."  The  defendant  justified  the  tak- 
ing as  a  deputy  sheriff  under  an  attachment  in  favor  of  a 
creditor  of  Wm.  F.  Welch  against  him.  A  verdict  having 
been  found  for  the  plaintiff  in  the  court  below,  it  w^as  sus- 
tained by  the  Supreme  Court.* 


the  property  vested  immediately  in  the  mortgagee,  defeasible  on  a  condition  sub- 
sequent; and  there  being  no  stipulation  that  the  jjossession  should  remain  with 
the  mortgagor,  the  right  of  possession  followed  as  incident  to  the  right  of  prop- 
erty, and  the  possession  of  the  mortgagor  was  that  of  the  mortgagee.  And  it 
made  no  difference,  as  to  the  property  and  the  possession  and  the  legal  rights  of 
the  mortgagee  therein,  whether  the  debt  for  which  they  were  hypothecated  was 
due  or  not.  The  defendant  took  nothing  by  his  subsequent  bill  of  sale  from 
Clark  but  a  right  of  redemption.  The  agreement  between  Clark  and  the  plaintiff 
to  accelerate  the  payment  of  the  note  could  not  be  injurious  to  the  defendant, 
because  it  did  not  affect  tlie  right  of  possession  that  was  in  the  plaintiff  before, 
nor  the  right  of  redemption,  which,  as  against  the  defendant,  he  could  not  fore- 
close until  after  the  time  originally  fixed  by  the  mortgage"  (and  see  Woodruff 
V.  Halsey,  8  Pick.  333;  Thurston  v.  Blanchard,  22  lb.  20). 

An  action  of  trespass  de  bonis  asportatis  for  timber  cut  from  mortgaged  prem- 
ises, may  be  I)rought  by  the  executor  of  the  mortgagee  of  the  premises  (Brooks 
V.  Goss,  01  Maine,  307). 

'  25  Maine,  86.  And  see  Paul  v.  Hayford,  22  lb.  234;  Rev.  Sts.  of  Maine, 
ch.  117,  §  38,  and  amendment  to  same  of  1842,  ch.  31,  §  12. 

*  In  the  above  case,  the  Supreme  Court,  in  overruling  exceptions  to  the  ver- 
dict, said:  "The  mortgage  being  bo)ia  Jide,  the  evident  object  of  tlie  parties 


538  WHO   MAY   MAINTAIN  THE   ACTION.  §  537. 

§  537.  If  the  mortgagee  be  iu  possession  of  the  goods,  he 
may  maintain  an  action  of  trespass  against  a  person  who 


thereto  was  to  give  to  the  plaintiif  security  for  his  debt,  without  depriving  the 
debtor  of  the  use  of  the  property ;  but  the  ordinary  right  of  a  mortgagee  to  take 
possession  of  the  property  at  pleasure,  was  not  intended  to  be  abridged  by  the 
interference  of  any  other  creditor.  As  it  was  the  privilege  of  the  parties  to  stipu- 
late that  the  plaintiff  should  have  entire  control,  till  the  redemiition  of  the  goods, 
they  could  make  such  restrictions  as  they  pleased.  If  the  mortgage  was  silent 
on  the  subject  of  possession,  the  defendants  would,  on  every  principle,  be  liable 
to  an  action  of  trespass.  Can  thev  be  less  so,  when  it  was  specially  provided 
that  such  an  attachment  at  the  time  it  should  be  made  should  give  the  right  to 
the  plaintiff  to  take  immediate  possession?  The  attachment  and  this  right  were 
to  be  simultaneous.  The  law  will  not  say  that  the  attachment  is  legal,  when  it 
can  give  no  right  to  the  officer  who  makes  it  to  hold  possession  of  the  property, 
and  can  create  no  lien  for  the  security  of  the  debt  of  the  creditor.  By  the  con- 
struction to  be  put  upon  the  instrument,  the  taking  by  the  defendant  was  an  in- 
jury to  the  possession  of  the  plaintifl"  secured  to  him  therein." 

Where  the  mortgagee  of  personal  property  has  left  it  in  the  custody  of  the 
mortgagor,  he  may  lawfully  take  possession  of  it,  notwithstanding  the  mortgagor 
may  have  transferred  it,  subsequent  to  the  mortgage,  to  a  creditor  to  secure  a  debt, 
and  the  creditor  and  mortgagor  have  joint  possession  of  it.  Coty  v.  Barnes  (30 
Vt.  78)  was  trespass  for  taking  a  cow.  One  Landue  had  been  the  owner  of  the 
cow,  and  had  mortgaged  her  to  the  defendant  as  security  for  rent.  The  cow  still 
remained  in  the  possession  of  Lardue ;  and  he  afterward  sold  her  to  the  plaintiff, 
as  security  for  a  debt  he  owed  him.  The  plaintiif  had  the  cow  for  four  or  five 
days,  and  she  then  went  back  into  the  custody  of  Landue  and  the  plaintiff,  and 
remained  in  that  situation  until  the  defendant  took  possession  of  her,  under  his 
mortgage.  Judgment  having  been  rendered  for  the  defendant  in  the  county  court, 
the  Supreme  Court,  in  affirming  it,  said :  '  ■  Both  the  defendant's  and  the  plaintiff's 
title  to  the  cow  was  incomplete  against  the  creditors  of  Landue  and  subsequent 
bona  fide  purchasers  from  him.  There  was  no  sufficient  change  in  the  possession 
of  the  cow.  The  fact  that  the  plaintiff  had  the  exclusive  possession  only  four  or 
five  days  can  be  of  no  avail.  But  the  title  of  each  is  good  against  Landue — no 
changein  the  possession  being  necessary  as  to  him;  and  it  has  been  frequently  de- 
cided in  this  State  that,  if  two  officers  attach  the  same  property,  each  leaving  it 
in  the  possession  of  the  debtor,  either  of  them  may,  at  any  time,  complete  his 
title  by  taking  possession,  not  only  against  third  persons,  but  also  against  the 
other  officer.  The  reason  is,  that  the  use  or  trust,  in  which  the  fraud  consisted, 
is  determined  when  the  possession  is  taken ;  and  it  being  simply  what  is  termed 
a  fraud  in  law,  the  title  is  purged  of  such  objection  when  a  substantial  and  visi- 
ble change  in  the  possession  is  effected.  The  axiom,  '  He  who  is  first  in  time, 
is  first  in  right,'  well  applies  in  such  case.  The  defendant  has  not  only  the  elder 
title  as  against  Landue,  but  he  is  first  in  time  in  taking  an  exclusive  possession,  . 
not  only  against  Landue,  but  also  against  the  plaintiff,  who  claims  under  a  junior 
title  from  Landue.  If  we  then  apply  the  same  principle  to  purchasers  that  has 
been  applied  between  attaching  creditors,  the  defendant  might  well  take  the  pos- 
session, so  long  as  the  plaintift''s  title  was  incomplete.  But  it  is  said,  the  plaintiff 
had,  in  fact,  the  possession  of  the  cow  when  the  defendant  drove  her  away,  and 
consequently,  the  superior  right;  but  it  was  a  joint  possession  with  Landue,  and 
the  plaintiff's  title  was  then  incomplete,  except  as  against  Landue.  The  credit- 
ors of  Landue  miglit  have  well  attached  the  property,  and  thereby  have  acquired 
a  right  paramount  to  the  plaintiff.  The  plaintiff  should  not  stand  in  any  better 
situation,  as  against  this  defendant,  than  he  would  against  attaching  creditors. 
Both  the  plaintiff's  and  the  defendant's  title  was  incomplete  until  the  defendant 
took  the  possession  of  the  cow.  He  then  purged  the  transaction  of  the  fraud  in 
law  in  relation  to  his  own  title,  leaving  it  in  full  operation  as  to  the  plaintiff's 
title.     It  is  difficult  to  see  bow  it  can  be  claimed  that,  as  between  these  parties, 


§  538.  WHERE   PROPEKTY  IS   MORTGAGED.  539 

seizes  them,  althoiigli  the  mortgage  be  afterwards  adjudged 
void.  Perry  v.  Chandler  ^  was  an  action  of  trespass  against 
a  sheriff  for  taking  and  carrying  away  dry  goods.  The  goods 
belonged  to  one  Maynard,  who  mortgaged  them  to  the 
plaintiff  to  secure  a  debt,  the  plaintiff  taking  them  into  his 
possession.  The  defendant  seized  them  by  virtue  of  an  at- 
tachment in  favor  of  the  creditors  of  Maynard,  who  was 
afterwards  adjudged  a  bankrupt,  and  the  attaching  officer 
appointed  his  assignee.  The  goods  were  finally  sold  by  the 
assignee,  the  avails  distributed  among  the  creditors  of  May- 
nard, and  the  mortgage  declared  by  the  District  Court  null 
and  void,  and  ordered  to  be  delivered  up  to  be  canceled. 
It  was  held  that  the  action  might  be  maintained,  it  having 
been  instituted  as-ainst  the  defendant  at  a  time  when  the 
plaintiff  had  a  right  to  the  prof)erty,  subject  only  to  the  con- 
tingency that  at  a  future  day  his  title  might  be  defeated  by 
proceedings  against  his  mortgagor  in  bankruptcy. 

§  538.  A  second  mortgagee  in  possession  of  personal 
property,  the  first  mortgage  remaining  unsatisfied,  may  re- 
cover in  trespass  against  a  stranger,  for  the  wrongful  taking 
of  the  property,  its  value  with  interest  from  the  time  of  the 
taking.^  *  And  a  person  who  has  paid  money  due  upon  a 
mortgage  may,  for  the  purpose  of  effecting  substantial  jus- 
tice, be  substituted  in  the  place  of  the  incumbrancer,  and 


the  plaintiff  has  the  superior  title.  If  the  defendant  were  a  stranger  to  all  title, 
the  plaintiff  might  well  stand  upon  his  concurrent  possession  with  Landue.  We 
think,  while  the  plaintiff's  title 'continued  incomplete  against  creditors,  for  want 
of  a  sufficient  change  in  the  possession,  the  defendant  had  the  same  right  to 
complete  his  title  that  he  would  have  had  if  the  sole  possession  had  remained  in 
Landue." 

'  2  Cush.  237. 

^  White  V.  Webb,  15  Conn.  302. 

*  An  oflScer  in  order  to  justify  the  taking  of  goods  from  the  possession  of  a 
bailee  of  the  mortgagee,  under  a  writ  against  the  mortgagor,  must  flrst  pay  or 
tender  the  amount  due  upon  the  mortgage  (Barker  v.  Chase,  24  Maine,  230). 

Where  goods  in  the  hands  of  the  mortgagee  are  seized  and  sold  under  execu- 
tion as  the  property  of  the  mortgagor,  an  action  of  trespass  may  be  maintained 
by  the  mortgagee  against  both  the  sheriff  and  the  plaintiff  in  the  execution 
(Sanders  v.  Vance,  7  Monr.  209). 


540  WHO   MAY  MAINTAIN   THE   ACTION.  §  358. 

treated  as  the  assignee  of  the  mortgage,  although  the  mort- 
gage itself  has  been  discharged.^  * 


'  Heath  v.  West,  6  Fost.  191 ;  Robinson  v.  Leavitt,  7  N.  Hamp.  90. 

*  Heath  v.  West,  supra,  was  an  action  of  trespass  for  taking  and  carrying 
away  the  plaintiff's  horse.  Heath,  the  plaintiff,  bought  the  horse  of  one  Den- 
nison,  and  executed  a  mortgage  to  him  to  secure  a  part  of  the  purchase  money. 
Dennison,  failing  to  get  his  pay,  called  on  Heath  either  to  pay  the  money  or 
give  up  the  horse.  There  was  talk  between  Heath  and  one  Hall  as  to  Hall's 
paying  for  and  owning  one-half  of  the  horse ;  and  it  was  agreed  that  Hall  should 
sign  a  note  for  $75,  to  raise  money  to  pay  Dennison,  and  should  keep  the  horse 
until  spring,  and  then  pay  for  and  own  half  of  him,  if  he  elected  to  do  so.  Be- 
fore this,  Dennison  had  seen  the  defendant  West,  and  told  Heath  and  Hall  that 
West  would  advance  the  money  on  their  note  and  a  mortgage  of  the  horse. 
Dennison  offered  to  assign  his  mortgage  to  West,  but  West  said  he  did  not  want 
an  assignment,  but  a  new  mortgage.  Heath  and  Hall  made  their  note  and 
mortgage  to  West,  and  Dennison  destroyed  the  note  he  held  and  canceled  his 
mortgage,  and  delivered  it  to  West.  The  horse  was  taken  and  sold  by  the  de- 
fendant on  the  mortgage.  At  the  date  of  the  above  mentioned  transactions,  as 
well  as  at  the  time  of  the  taking,  the  plaintiff  was  under  age.  Had  the  contro- 
versy arisen  between  Heath  and  Dennison,  the  case  would  have  been  clear.  If 
Dennison  had  in  terms  assigned  his  mortgage  to  West,  the  case  would  have  been 
equally  clear  between  Heath  and  West.  The  transaction  not  being  in  form  an 
assignment  of  the  mortgage,  the  question  was,  whether  consistently  with  recog- 
nized legal  principles,  it  could  be  regarded  as  so  far  in  substance  an  assignment 
as  to  give  West  the  benefit  of  it.  The  court  said :  "It  seems  apparent  that  the 
debt  to  Dennison  was  substantially  paid  by  West,  and  that  substantial  justice 
will  be  promoted  by  regarding  West  as  substituted  in  Dennison's  place,  and 
treating  him  as  assignee  of  Dennison's  mortgage.  The  object  of  all  parties  was 
to  give  to  West  a  valid  security  upon  this  horse  for  the  money  he  advanced  to 
pay  Dennison,  and  it  is  just  to  all  parties  to  regard  the  Dennison  mortgage  as 
not  discharged,  but  still  subsisting  for  the  benefit  of  West.  It  was  clearly  the 
interest  of  West  to  take  an  assignment  of  Dennison's  mortgage,  because  that 
could  not  be  avoided  without  also  avoiding  Dennison's  sale.  It  was  a  case 
whei'e  the  parties  acted  under  a  mistake,  the  obvious  effect  of  what  they  did 
being  to  destroy  a  good  and  effectual  security,  and  to  give  a  writing  in  its  stead 
which  was  without  any  binding  effect.  We  are  of  opinion  that  West  should  be 
regarded  as  the  assignee  of  Dennison's  interest  in  this  animal,  and  entitled  to 
take  and  sell  the  creature  by  virtue  of  the  mortgage,  and  if  that  is  considered  as 
avoided,  then  the  sale  to  Heath  being  at  the  same  time  avoided,  West  had  a 
right  to  take  and  dispose  of  the  animal  under  Dennison's  original  title." 

Taggart  v.  Packard,  39  Vt.  628,  was  an  action  of  trespass  for  a  quantity  of 
hay.  It  appeared  that  the  defendant  and  one  Russell  contracted  with  one  Ray- 
mond for  the  use  of  certain  premises  owned  by  Raymond,  by  which  it  was 
agreed  that  Russell  should  cut  the  hay  and  put  it  in  the  barn  on  the  place;  but 
that  if  Russell  should  pay  Raymond  on  or  before  the  1st  of  October  then  next 
the  sum  of  $12,  then  the  hay  was  to  belong  to  Russell.  The  $12  w^ere  not  paid 
by  the  1st  of  October,  but  on  the  14th  of  October  Russell  paid  $6  on  account. 
On  the  14th  of  November,  the  balance  not  having  been  paid,  Raymond  sold  the 
hay  to  one  Adams  for  $6,  and  assigned  the  contract  to  him.  Adams  had  mean- 
while bought  of  Russell  his  half  of  the  hay  as  between  him  and  the  defendant, 
with  full  knowledge  of  the  arrangement  between  Raymond,  Russell,  and  the  de- 
fendant. Subsequently,  Adams  sold  his  interest  in  the  hay  to  the  plaintiff  and 
assigned  to  hira  the  aforesaid  contract.  Afterward  the  defendant  tendered  lo 
the  plaintiff  the  balance  due,  and  claimed  half  of  the  hay,  which  the  plaintiff 
refusing,  the  defendant  took  half  of  the  hay  away,  and  it  was  for  that  act  that 
this  suit  was  brought.  It  was  held  that  the  effect  of  the  several  tranfers  was  to 
put  the  phaiutifl'in  the  place  of  Raymond,  and  to  vest  in  him  the  same  right  to 


§  539.  WHERE   PROPERTY   IS   MORTGAGED.  541 

§  539.  At  common  law,  a  mortgage  or  sale  of  future 
acquired  chattels,  the  mortgagor  neither  having  the  goods 
nor  the  agent  of  their  production  at  the  time  of  making  the 
contract,  creates  no  valid  subsisting  title.  It  was  accordingly- 
held  that  a  clause  in  a  mortgage  of  goods  in  a  store  convey- 
ing not  only  those  then  in  the  store,  but  whatever  might  be 
therein  at  any  time  in  the  course  of  the  mortgagor's  business, 
was,  as  to  subsequently  acquired  goods,  inoperative  for  the 
purpose  of  enabling  the  mortgagee  to  maintain  an  action  at 
law  against  the  party  seizing  them.^  *  But  if  the  future 
acquired  chattels  are  necessary  for  the  preservation  and 
utility  of  the  thing  mortgaged — or  are  the  product  of  present 
property  in  the  mortgagor,  as  the  wool  growing  on  sheep,  or 
the  produce  of  a  dairy  or  farm,  or  anything  of  that  character 
— the  mortgage  w^ill  take  effect  upon  the  property  as  soon 
as  it  comes  into  existence,  and  be  binding  at  law\^  Where 
after  the^  mortgage  of  a  vessel,  the  mortgagor  substitutes  new 
sails  for  the  old  ones,  which  are  nearly  worn  out,  and  the 

the  hay  that  Raymond  would  have  had  if  he  had  retained  his  interest  in  it;  that 
the  transaction  could  only  be  regarded  as  a  pledge  of  the  hay  to  Raymond  as 
security  of  the  rent  of  $12,  to  be  redeemed  by  the  payment  of  that  sum  on  or 
before  the  first  day  of  October  then  next ;  that  the  rent  not  having  been  paid  by 
the  first  of  October,  Raymond  had  the  right  to  compel  the  defendant  to  redeem 
the  pledge  or  be  foreclosed  of  all  his  rights  therein,  but  that  until  he  did  so,  the 
defendant  had  the  right  to  redeem ;  and  that  as  the  defendant  tendered  to  the 
plaintiff  the  balance  due  before  he  took  the  hay,  and  took  it  peaceably,  he  was 
not  a  trespasser. 

'  Hamilton  v.  Rogers,  8  Md.  301 ;  Lunn  v.  Thornton,  1  Man.  Gr.  &  Scott, 
379 ;  but  see  Tapfield  v.  Hillman,  6  Man.  &  Gr.  245 ;  Hanuon's  Exrs.  v.  The 
State  use  of  Robey,  9  Gill,  440 ;  Hudson  v.  Warner,  2  Har.  &  Gill,  428 ;  Preston 
V.  Leighton,  6  Md.  98. 

'  Van  Hoozer  v.  Corv,  34  Barb.  9 ;  Otis  v.  Sill,  8  lb.  102 ;  Holroyd  v.  Mar- 
shall, 9  Jur.  N.  S.  218. 

*  Rowley  v.  Rice,  11  Mete.  337,  was  an  action  of  trespass  against  a  sheriff 
for  entering  the  plaintiff's  store  and  attaching  his  goods  upon  a  writ  sued  out 
against  one  Tingley.  The  plaintiff  claimed  the  goods  by  virtue  of  a  prior  mort- 
gage of  them  by  Tingley  to  him,  given  to  secure  the  payment  of  certain  notes; 
and  the  mortgage  purported  to  include  not  only  the  goods  then  in  Tiugley's 
store,  but  such  as  he  might  afterward  purchase.  It  appeared  that  by  an  arrange- 
ment made  between  the  plaintiff  and  Tingley,  the  plaintiff  took  possession  of  all 
the  goods,  as  well  those  after  purchased  as  those  existing  at  the  time  of  the 
mortgage,  under  an  agreement  ti)at  he  should  sell  the  same,  pay  his  own  notes 
out  of  the  proceeds,  and  account  to  Tingley  for  the  surplus.  It  was  held  that 
the  officer  was  justified  in  taking  and  holding  the  goods,  because  the  attaching 
creditor  must  pay  the  amount  for  which  they  were  hypotiiecated,  unless  the 
officer  kept  po.ssession  of  the  store  an  unreasonable  length  of  time,  in  which  case 
he  might  become  a  trespasser  ab  initio. 


542  WHO   MAY   MAINTAIN   THE   ACTION.  §  540. 

mortgagee  then  takes  possession  of  the  vessel  and  sells  it  at 
auction  under  the  mortgage,  he  becoming  the  purchaser,  the 
new  sails  will  belong  to  him  as  part  of  the  vessel.^  *  When 
during  the  term  of  a  mortgage  upon  a  printing  establish- 
ment, the  type  and  other  materials  belonging  to  it  are  re- 
moved and  new  ones  substituted,  if  the  new  type  and  mate- 
rials were  procured  for  the  purpose  of  replenishing  the  estab- 
lishment mortgaged,  and  of  supplying  the  place  of  articles 
belonging  to  it  which  had  been  lost  or  destroyed  by  use, 
and  were  attached  to  and  incorporated  with  it,  they  become 
a  part  of  the  establishment,  and  by  right  of  accession  belong 
to  the  owners  of  it.  They  form  an  incident  to,  and  follow 
the  title  of  the  printing  establishment  to  which  they  are  at- 
tached, which  is  the  principal  thing.  So,  if  the  borrower  of 
a  watch  replace  its  crystal,  or  of  a  musical  instrument  one  of 
its  strings,  keys,  or  pipes  which  has  been  lost,  destroyed,  or 
become  useless  in  his  service,  it  belongs  to  the  lender.^ 

§  540.  Where  the  mortgagee  causes  the  property  to  be 
sold  under  a  judgment  and  execution  for  the  mortgage  debt, 
he  thereby  waives  all  claim  under  the  mortgage.  A.  mort- 
gaged certain  goods  to  B.  to  indemnify  him  for  signing  a  note 
to  S.  as  A.'s  surety,  and  B.  assigned  the  mortgage  to  S.  A. 
then  mortgaged  the  same  goods  to  C.     S.  brought  an  action 


'  Soiithworth  v.  Isham,  3  Sandf.  448.  "  Holly  v.  Brown,  14  Conn.  266. 

*  In  Southworth  v.  Isham,  supra,  the  court  remarked  that  if  it  were  even 
conceded  that  the  mortgagor  could  have  removed  the  new  sails  before  actual 
possession  by  the  mortgagee  under  the  mortgage,  still  after  such  possession  the 
mortgagor's  claim  was  gone.  Conderman  v.  Smith,  41  Barb.  404,  was  an  action 
by  the  lessor  and  purchaser  against  a  creditor  of  the  lessee  who  had  taken  and 
sold  the  products  of  the  farm  and  dairy  upon  execution.  It  was  held  tliat  it  did 
not  fall  within  the  rule  which  prohibits  the  selling  or  mortgaging  property  not 
in  existence  or  not  owned  at  the  time  by  the  vendor  or  mortgagor.  It  was  the 
product  of  property  which  the  vendor  owned  at  the  time,  and  was  potentially 
his,  and  therefore  the  subject  of  sale.  This  is  an  old  and  well  settled  doctrine, 
and  is  fully  examined  in  Van  Hoozer  v.  Cory,  supra.  The  case  is  distinguish- 
able from  that  of  a  sale  or  mortgage  of  property  to  which  the  seller  or  mort- 
gagor has  no  right  at  the  time  of  the  sale  or  the  mortgage,  either  actual  or 
potential,  but  in  which  he  expects  he  shall  acquire  some  title  or  right  at  a 
future  day. 

A  verbal  sale  of  all  the  personal  property  the  vendor  then  had,  and  all  that 
he  miglit  thereafter  acquire  and  die  possessed  of,  will  not  pass  the  legal  title  to 
the  subsequently  acquired  property,  so  as  to  enable  the  vendee  to  maintain  tres- 
pass for  its  removal  (Wilson  v.  Wilson,  37  Md.  1). 


§  540.  WHERE   PROPERTY   IS   MORTGAGED.  543 

against  A.  and  B.  on  their  said  note,  and  attached  the  goods, 
and,  having  obtained  judgment,  caused  the  goods  to  be  sold 
under  an  execution.  It  was  held,  that  8.,  by  causing  the 
goods  to  be  sold  by  virtue  of  the  execution,  must  be  deemed 
to  have  waived  all  claims  under  the  mortgage  ;  that  C.  might 
maintain  trespass  against  S.  and  the  officer  who  sold  the 
goods,  and  that  the  measure  of  damages  was  the  value  of  C.'s 
right  to  redeem  the  goods.^  *     If  the  mortgagee,  the  condi- 


'  Kimball  v.  Marshall,  8  N.  Hamp.  291. 

*  In  this  case,  the  court  said  that  it  would  be  grossly  unjust  to  let  S.  set  up 
the  mortgage  after  he  had  voluntarily  caused  the  goods  to  be  sold,  and  put  it  out 
of  his  power  to  restore  them  upon  performance  of  the  condition  of  the  mortgage 
by  C,  and  that  the  wrong  to  C.  was  the  same  that  it  would  have  been  had  S. 
taken  the  goods  without  an  execution  and  sold  them,  giving  the  plaintiff  no  op- 
portunity to  redeem.  "The  plaintiff,"  continued  the  court,  "has  never  had 
possession  of  the  goods,  and  can  be  held  to  account  with  the  mortgagor  only  for 
the  amount  he  may  recover  in  this  case.  The  only  loss  he  has  sustained  tlirough 
the  injurious  acts  of  the  defendants  is  the  loss  of  the  privilege  of  redeeming  the 
goods.  And  we  are  of  the  opinion,  that  the  value  of  that  privilege  is  the  meas- 
ure of  the  damages  to  which  the  plaintiff  is  entitled." 

In  an  action  of  trespass  de  bonis  asportatis  against  a  deputy  sheriff,  it  appeared 
that  the  goods  in  question  were  held  by  the  plaintiff  under  a  mortgage  from  one 
Case,  the  former  owner,  and  that  the  defendant  attached  them  as  the  goods  of 
Case.  The  goods  were  mortgaged  by  Case  to  the  plaintiff,  to  secure  him  as  ac- 
commodation indorser  of  a  note  which  afterward  became  the  property  of  a  bank. 
After  the  seizure  of  the  goods  by  the  defendant,  the  plaintiff  caused  a  suit  to  be 
brought  on  the  note  in  the  name  of  the  bank  against  Case  by  writ  of  attachment, 
which  the  plaintiff  put  into  the  hands  of  the  defendant,  directing  him  to  attach 
the  same  goods  sul)ject  to  the  former  attachment.  It  was  held,  that  the  tres- 
pass of  the  defendant  in  taking  the  goods  out  of  the  possession  of  the  plaintiff, 
was  not  waived  by  reason  of  the  plaintiff's  acts  in  relation  to  the  subsequent 
attachment  in  favor  of  the  bank ;  but  that  the  conduct  of  the  plaintiff,  in  relation 
to  that  suit,  was  a  proper  subject  for  the  jury  to  consider  in  determining  the 
validity  of  his  mortgage  title  (Dyer  v.  Cady,  20  Conn,  563). 

Frothingham  v.  McKusick,  24  Maine,  403,  was  an  action  of  trover  by  the 
assignees  of  the  mortgage  of  certain  land  for  a  quantity  of  logs  and  boards,  with 
counts  in  trespass  de  bonis  asportatis  for  the  same.  Tiie  defendant  admitted  that 
he  sawed  and  manufactured  into  boards  six  hundred  and  fifty  thousand  feet  of 
the  timber.  He  attempted  to  excuse  himself  upon  the  ground  that  he  acted  as 
the  hired  servant  of  those  who  cut  it.  But  it  appeared  that  he  furnished  sup- 
plies and  aided,  by  paying  the  workmen  under  his  employer,  in  cutting  and 
hauling  the  timber,  until  his  claim  therefor,  and  for  sawing,  amounted  to  $3,000, 
for  which  he  was  reimbursed  nearly  to  the  whole  amount  from  the  proceeds  of 
the  timber,  a  number  of  thousand  feet  of  which  he  sold  himself.  The  defense 
was,  that  the  person  under  whom  the  defendant  acted  was  licensed,  by  the  mort- 
gagor to  cut  the  timber  and  to  manufacture  it  into  boards  upon  certain  terms 
and  conditions.  But  the  license  was  granted  long  after  the  conveyance  in  mort- 
gage to  the  plaintiffs.  It  appeared  that  the  plaintiffs  took  an  assignment  of  the 
rights  of  the  mortgagor  arising  under  the  license.  This,  however,  was  not  done 
until  the  timber  in  question  iiad  been  cut,  hauled,  and  nearly  all  manufactured 
and  disposed  of  by  the  defendant  and  the  person  under  whom  he  pretended  to 
act.     The  defendant  contended  that  the  taking  of  the  assignment  of  the  license 


544  WHO   MAY  MAINTAIN   THE   ACTION.  §  541  ► 

tion  being  broken,  sell  otherwise  than  in  the  manner  directed 
by  the  statute,  he  will  not,  by  so  doing,  become  a  trespasser 
ah  initio^  the  title  of  the  mortgagee  not  being  forfeited  by 
such  sale,  as  that  of  a  mere  bailee  might  have  been.^ 

§  541.  Where  the  parties  have  stipulated  in  the  mort- 
gage that  the  mortgagor  shall  keep  possession  until  condition 
broken,  or  for  a  certain  time,  or  until  the  occurrence  of  some 
future  contingency,  the  right  of  the  mortgagee  will  be  thereby 
suspended  until  the  right  of  possession  of  the  mortgagor  has 
ceased.^  A  mortgagor  of  chattels  remaining  in  possession 
before  default,  under  a  clause  entitling  him  to  such  posses- 
sion,  has  an  interest  in  the  property  which  is  subject  to  levy 
and  sale  on  execution  ao-ainst  him.  Althouo-h  the  interest 
which  passes  to  the  purchaser  at  such  sale  is  only  such  an 
interest  as  the  mortgagor  had,  yet  the  sheriff,  and  the  parties 
promoting  the  sale,  are  not  trespassers  if  the  sale  is  in  general 
terms,  without  any  notice  being  taken  of  the  existence  of  the 
mortgage.  These  points  were  involved  in  Hull  v,  Carnley,^ 
which  was  argued  in  the  New  York  Court  of  Appeals,  and 
settled,  after  mature  deliberation.*     But  after  default  in  the 


was  a  ratification  of  the  authority  of  the  mortgagor  to  grant  the  permit,  and  a 
•waiver  of  the  rights  of  the  plaintiffs  under  the  mortgage.  The  court  held,  that 
as  the  right  of  action  against  the  defendant  as  a  tort-feasor  had  long  before  be- 
come fixed  in  the  plaintiffs,  and  could  not  be  removed  but  by  a  release,  or  accord 
and  satisfaction,  they  were  entitled  to  recover. 

'  Leach  v.  Kimball,  34  N.  Hamp.  568. 

^4  Kent.  Com.  138;  Story  on  Bailm.  287;  Hoyt  v.  Remick,  11  N.  Hamp. 
285;  Smith  v.  Moore.  lb.  55;  Asb  v.  Savage,  5  lb.  545  ;  Libby  v.  Cushman,  16 
Shepl.  429;  Brackett  v.  BuUard,  12  Mete.  308;  Russell  v.  Butterfield,  21  Wend. 
300;  Welch  v.  Whittemore,  13  Shepl.  86;  Redman  v.  Hendricks,  1  Sandf.  32; 
Skiff  V.  Solace,  8  Wash.  279 ;  Leach  v.  Kimball,  Supra. 

'  17  N.  y.  202;  s.  c.  11  Bx  501 ;  2  Duer,  99.  And  see  Marsh  v.  Lawrence,  4 
Cowen,  461 ;  Otis  v.  Wood,  3  Wend.  498 ;  Bailey  v.  Barton.  8  lb.  339 ;  Mattison 
V.  Baucus,  1  Comst.  295 ;  Livor  v.  Orser,  5  Duer,  501 ;  Goulet  v.  Asseler,  22  N. 
Y.  225 ;  Manning  v.  Monaghan,  28  lb.  585. 

*  It  has  been  held,  in  Vermont,  that  when  machinery  in  a  factory  is  mort- 
gaged, either  with  or  without  the  land,  and  left  in  the  possession  of  the  mort- 
gagor, it  may  be  attached  as  his  property.  Sturgis  v.  Warren.  11  Yt.  433.  was 
an  action  of  trespass  against  a  deputy  sherifi'for  attaching  and  taking  away  wool, 
cloth,  machinery,  a  factory  bell,  &c.  It  appeared  that  a  certain  manufacturing- 
company  mortgaged  to  W.  and  B.  their  factory  and  the  machinery  therein  on 
the  6th  day  of  Jan..  1837.  The  company,  still  remaining  in  possession  of  the 
property  mortgaged,  the  defendant  attached  it  as  their  property  on  the  22d  day 
of  the  following  April.     On  the  loth  of  May  next  thereafter,  W.  and  B.  assigned 


§  542.  WHERE    TROPERTY   1&   MORTGAGED.  545 

mortgage  and  possession  by  the  mortgagee  for  the  purpose 
of  foreclosure,  and  knowledge  thereof  by  the  parties,  if  they 
take  and  sell  the  entire  property,  and  not  merely  the  interest 
of  the  mortgagor,  they  become  trespassers.^ 

§  542,  One's  right  in  his  property  is  not  divested  or 
changed  as  against  strangers,  by  reason  of  his  having  mort- 
gaged it  for  another's  debt.  As  against  all  persons  but  the 
mortgagee  and  those  claiming  under  him,  the  mortgagor  has 
the  right  of  property  and  of  possession,  and  can  maintain 
trespass  for  its  removal.^  Cram  v.  Bailey^  was  an  action 
against  an  officer  for  wrongfully  attaching  the  goods  of  the 
plaintiff.     It  appeared  that  the  property  was  mortgaged  by 


tlieir  mortgage  to  the  plaintiflF,  but  the  assignment  was  not  witnessed,  acknowl- 
edged and  recorded,  until  the  23d  day  of  January,  1838.  In  July,  1837,  the 
plaintiff  took  possession  of  the  factcry.  Afterward  judgments  were  obtained  on 
the  attachments,  and  in  January  the  defendant  sold  the  machinery  in  question, 
on  the  executions.  The  machinery  and  bell  were  secured  to  the  building  in  the 
usual  manner.  Judgment  having  been  rendei-ed  for  the  defendant  by  the  County 
Court,  the  Supi'eme  Court  said:  "Some  doubt  has  perhaps  been  expressed  when 
personal  property  is  mortgaged  witli  real  estate,  and  the  statute  gives  the  use  of 
the  real  estate  to  the  mortgagor  until  the  pay  day,  and  the  use  of  the  personal 
property  with  the  realty  constituted  its  main  value,  wdiether  such  case  ought  not 
to  constitute  an  exception  to  the  general  rule  that  the  possession  bf  personal 
property  must  always  accompany  and  follow  the  sale  or  mortgage,  to  protect  it 
from  attachment.  We  find  it,  however,  extremely  difficult  to  adopt  any  such 
exception,  from  the  impossibility  of  ascribing  to  it  any  distinct  limitations.  It 
might  be  made  to  cover  a  store  with  its  goods,  or  a  farm  with  its  stock,  as  well 
as  a  factory  with  its  macliinery." 

By  indenture  of  sale,  A.  assigned  all  of  his  household  goods,  &c.,  to  secure  a 
debt  due  from  him  to  the  assignees,  subject  to  a  proviso  that  the  deed  should 
become  void  ujion  payment  of  the  said  sum  on  a  certain  day,  or  on  some  earlier 
day,  to  1)e  ajjpointed  by  the  assignees  \)j  a  notice  in  writing,  to  be  served  on  A. 
twenty-four  hours  before  the  day  of  payment  so  appointed,  interest  to  be  paid  in 
the  mean  time.  It  was  also  agreed  by  the  deed,  that  after  default  made  in  pay- 
ment contrary  to  the  said  proviso,  it  should  be  lawful  for  the  assignees  to  enter  and 
take  possession  of  the  goods,  and  to  sell  them  and  reimburse  themselves  out  of 
the  proceeds,  accounting  to  A.  for  any  surplus;  and  that  until  such  default,  it 
should  be  lawful  for  A.  to  hold,  use,  and  possess  the  said  goods  without  hin- 
drance from  the  assignees.  The  assignees  served  A.  with  a  notice  to  pay  on  a 
day  earlier  than  that  named  in  the  deed,  and  afterwards  entered  and  took  and 
sold  the  goods  assigned;  but  the  notice  was  bad,  having  been  served  less  than 
twenty-four  hours  before  the  day  of  payment  appointed  by  the  assignees.  It  was 
held,  that  A.  had,  under  the  deed,  the  right  of  jiossession  of  the  goods,  defeas- 
ible only  by  default  in  payment  after  due  notice;  and  that  he  might,  therefore, 
sue  the  assignees  in  trespass  for  having  wrongfully  entered  and  sold  (Brierly  v. 
Kendall,  17  Adol.  &  El.  N.  S.  937). 

'  Gelhaar  v.  Ross,  1  Hilton,  117. 

"  Hanmer  v.  Wilsey,  17  Wend.  91 ;  Carnrick  v.  Myers,  14  Barb.  9. 

'  10  Gray,  87.     And  see  Ullman  v.  Barnard,  7  lb.  558. 
Vol.  I. — 35 


546  ^vno  MAT  mai:n"tai]v:  the  action.  §  543. 

the  plaintiff  and  her  daughter  to  one  Chase,  to  secure  the  in- 
debtedness of  the  daughter  to  him,  and  that  Chase,  when  he 
received  the  mortgage,  and  the  defendant,  when  he  attached 
the  property,  knew  that  it  belonged  to  the  plaintiff.  At  the 
trial  in  the  Common  Pleas,  the  defendant  offered  to  prove 
that  Chase  had  released  the  defendant  and  the  attaching 
creditors  from  all  claim  for  dainages.  But  the  evidence  was 
rejected.  The  defendant  contended  that  the  plaintiff,  by 
uniting  with  her  daughter  in  mortgaging  her  propert}^,  ren- 
dered it  liable  to  attachment  as  the  daughter's,  and  that  the 
plaintiff  coukl  at  all  events  only  recover  the  value  of  the 
right  of  redeeming  the  property  from  the  mortgage.  The 
jury  having,  under  the  instructions  of  the  judge,  found  a  ver- 
dict for  the  plaintiff'  for  the  full  value  of  the  proj^erty,  the 
Supreme  Court  refused  to  disturb  it.* 

§  543.  Where  property  is  sold,  and  a  mortgage  given 
back  to  secure  the  purchase  money,  it  is,  in  law,  one  transac- 
tion ;  and  one  part  cannot  be  disaffirmed  or  rescinded  with- 
out the  other  being  disaffirmed  or  rescinded  also.  A  persou 
cannot  apply  to  his  own  use  that  part  of  the  transaction 
which  may  bring  to  him  a  benefit,  and  repudiate  the  other 
which  it  may  not  be  for  his  interest  to  fulhl.  Thus,  it  has 
been  held,  that  an  infant  cannot  avoid  a  mortgage  and  affirm 
a  deed  when  both  are  made  at  one  and  the  same  time,  relate 
to  the  same  property,  and  go  to  make  up  one  transaction. 
If  the  mortgage  be  avoided  under  the  plea  of  infancy,  the 
deed  becomes  of  no  effect.  Where,  therefore,  an  infant,  hav- 
ing bought  a  horse,  gave  back  a  mortgage  for  the  balance  of 
the  purchase  money,  it  was  held,  that  he  could  not  repudiate 


*  In  Cram  v.  Bailey  supra,  the  court  said  :  "  Tiie  plaintiff's  right  in  her  prop- 
erty was  not  divested  or  changed  as  against  strangers,  by  reason  of  her  having 
mortgaged  it  for  her  daugliter's  debt.  As  against  all  persons  but  the  mortgagee 
and  tiiose  claiming  under  him,  she  had  the  right  of  property  and  of  possession, 
and  can  maintain  this  action.  The  measure  of  damages  to  the  plaintiff  was  the 
value  of  the  property  at  tiie  time  it  was  taken.  The  fact  that  a  third  person  had 
a  claim  upon  it  did  not  diminish  the  plaintiff's  claim  for  damages.  Tlie  settle- 
ment made  by  the  attaching  creditors  with  the  mortgagee,  without  the  plaintiff's 
knowledge  or  consent,  did  not  affect  the  plaintiff 's  chiim  for  damages.  It  did 
not  appear  but  that  the  daughter  would  pay  the  whole  debt." 


§  544.       OWNER    PARTING  WITH  RIGHT   OF   POSSESSION.  547 

the  mortgage  and  keep  the  horse,  or  maintain  trespass 
asrainst  the  morto-ao^ee  for  taldns;  the  horse  by  virtue  of  the 
mortgage.^ 

7.    Where  the  owner  has  parted  with  his  right  of  possession. 

§  544.  The  general  owner  may  so  part  with  his  right  to 
the  possession  of  his  property  as  not  to  be  able  to  maintain 
trespass  for  an  unlawful  taking  of  it,  though  his  general  title 
remains  unimpaired.  The  law  gives  him  au  action  for  the 
injury  thus  done  him ;  but  he  cannot  maintain  trespass, 
which  w^e  have  seen  lies  only  for  an  injury  to  the  possession.^  * 
If  A.  permit  his  goods  to  remain  w^ith  B.  for  his  own  use, 
and  B.  deliver  them  to  C.  to  carry  to  another  place,  trespass 
does  not  lie  by  A.  against  C,  for  the  reason  that  B.  had  the 
goods  by  delivery  from  the  owner.  Again,  if  a  man  hire 
a  horse  to  use  two  days,  and  he  continue  to  use  him  the  third 
day,  trespass  will  not  lie,  although  such  use  is  unlawful,  and 
although  the  owner  is  entitled  to  the  immediate  possession  ; 
yet  being  the  general  owner,  and,  as  such,  having  a  construc- 
tive possession,  he  might  maintain  trespass  against  a  stranger 


'  Heath  v.  West,  8  Fost.  101;  Roberts  v.  Vv'iggiu,  1  N.  Hamp.  73;  Richard- 
son V.  Boright,  9  Vt.  368. 

■  Hurd  V.  Fleming,  34  Vt.  1G9;  Wilson  v.  Martin,  40  N.  Hamp.  88  ;  Clark  v. 
Carlton,  1  lb.  110  ;  Poole  v.  Symouds,  lb.  2R9 ;  Heath  v.  West,  28  lb.  101 ;  Moul- 
ton  V.  Robinson,  27  lb.  ooO;  Marshall  v.  Davis.  1  Wend.  109;  isash  v.  Mosher.  19 
lb.  431;  Newhall  V.  Dunlap,  2  Shepl.  180;  Gavv.  f^mith,  38  N.  Hamp.  171;  1 
Chitty's  PI.  7th  ed.  188-195;  2Greenlf.  Ev.  §§  613,  614,  616. 

*  Where  an  infant  prevails  upon  another  to  sign  a  note  for  him,  and  in  order 
to  get  him  to  do  so,  turns  out  to  him  furniture,  with  liberty  to  take  it  when  he 
pleases,  the  infant  cannot  afterward  maintain  trespass  against  the  other  for  taking 
the  furniture  away.  In  Iloyt  v.  (;hapin,  6  Vt.  42,  the  defendant,  on  the  trial  in 
the  court  below,  proved  that  the  plaintifi"  procured  the  defendant  to  sign  with  and 
for  the  plaintifi"  a  note,  and  to  induce  him  to  do  so,  turned  out  to  him.  among 
otiier  property,  a  stove.  The  defendant  did  not  at  that  time  take  the  stove  away, 
but  it  was  then  agreed  that  he  might  do  so  wtienever  he  pleased.  The  note  not 
having  l)(!en  paid,  the  defendant  took  the  stove  away.  It  was'held  that  the  fore- 
going facts  v.cre  sutficient  evidence  of  a  license.  The  plaintift"  then  offered  to 
prove  tliat  when  tlie  agreement  was  entered  into  he  was  an  infant,  which  was 
held  inadmissible.  The  Supreme  Court  said:  "This  property  was  turned  out  to 
Chapin,  and  the  license  granted  to  take  it  away,  on  a  valuable  consideration.  It 
lay  not  in  grant,  but  in  livery.  It  was  not  void.  Without  now  deciding 
how  much  the  j)l;iintiff  must  have  done  in  order  to  revoke  or  avoid  this 
contract,  or  any  part  thereof,  or  what  effect  it  would  have  had. on  Chapin  or  the 
note,  we  are  of  the  opinion  tliat  it  must  luive  been  avoided  by  some  clear  and  sul*- 
stantial  act  before  the  taking  complained  of,  and  such  revocation  been  specially 
replied  in  order  to  have  been  admitted." 


548  WHO   MAY  MAINTAIN   THE   ACTION.  §  545. 

who  should  presume  to  use  the  horse  on  the  third  day.^  Lunt 
V.  Brown  ^  was  an  action  of  trespass  against  a  deputy  sheriff 
for  taking  the  pLaintiff's  mare,  on  an  attachment  against  one 
Winn.  It  appeared  that  the  plaintiff  had  previously  pur- 
chased the  mare  of  Winn,  but  that  it  was  at  the  same  time 
agreed  that  Winn  should  keep  the  mare  until  grazing  time, 
and  if,  at  any  time  before  then,  Winn  should  pay  the  plaintiff 
fifteen  dollars  and  interest,  the  plaintiff  would  resell  the  mare 
to  him.  It  was  held  that,  as  the  plaintiff  had  neither  pos- 
session, nor  the  right  of  possession,  at  the  time  of  the  alleged 
trespass,  the  action  could  not  be  maintained.* 

8.  In  case  of  haihnent. 
§  545.  One  who  has  a  s|)ecial  property  in  a  chattel  may 
maintain  trespass  against  the  person  who  deprives  him  of 
the  possession,  and  recover  according  to  his  interest ;  ^  and  an 
interest  will  be  presumed  in  the  absence  of  proof  to  the  con- 
trary.^ Where  a  parcel  of  undressed  skins  was  delivered  to 
a  morocco  manufacturer,  to  be  manufactured  into  morocco, 
and  while  the  skins  were  in  an  unfinished  state,  the  owners 
turned  them  out  to  their  creditor,  who  caused  them  to  be  at- 
tached and  carried  away,  it  was  held  that  the  bailee  might 
have  legally  detained  them  until  the  price  stipulated  for 
finishing  them  was  paid,  and  that  he  might  maintain  trespass 
against  the  persons  taking  them.  But  it  would  have  been 
otherwise,  if  a  particular  time  or  mode  of  payment  for  dress- 
ing the  skins  had  been  agreed  on,  or  if,  at  the  time  of  taking 
them,  the  bailors  had  offered  and  aOTeed  to  allow  the  bailee 
the  full  price  for  dressing  tliem  out  of  moneys  actually  in  the 
bailee's  hands.^  f     Where  a  sheriff  seizes  goods  under  an  at- 

'  Bradley  v.  Davis,  14  Maine,  44.  M3  Maine,  236. 

=  Cowing  V,  Snow,  11  Mass.  415 ;  Gilson  v.  Wood,  20  111.  37 ;  Bradley  v.  Davis, 
14  Maine,  44. 

*  Howe  V.  Keeler,  27  Conn,  538.  °  Burdict  v.  Murray,  3  Vt.  S02. 

*  In  Wyman  v.  Dorr,  3  Maine,  183,  the  cattle,  for  the  taking  of  which  trespass 
was  brought,  had  been  leased  for  a  term  of  years,  to  be  taken  back  by  the  owner 
within  the  term  if  he  should  deem  them  unsafe  in  the  hands  of  the  lessee.  As 
llie  term  had  not  expired,  and  as  no  notice  had  been  given,  the  action  was  not 
sustained. 

t  In  Cowing  v.  Snow,  supra,  Snow  brought  an  action  against  Cowing,  in  the 


§  545.  IN    CASE   OF   BAILMENT.  549 

tachment  against  the  property  of  tlie  consignor,  as  a  non- 
resident debtor,  wLicli  are  in  the  possession  of  a  consignee 
who  has  made  advances  on  them,  he  is  liable  as  a  trespasser 
in    an    action    therefor   brought   against    him    by    the    con- 


court  below,  for  taking  and  carrying  away  a  barrsl  of  flour.  The  flour  had  been 
purchased  for  Cowing  in  New  York,  by  one  Barstow,  the  master  of  a  sloop,  of 
which  Snow  was  pra-t  owner,  and  agent  for  the  other  owners.  The  defendant 
had  advanced  eight  dollars  with  which  to  buy  the  flour,  Barstow  agreeing  to 
make  up  tlie  deficiency  should  it  cost  more.  On  the  return  of  the  sloop  from 
New  York,  the  flour,  which  was  marked  with  the  initials  of  the  defendant's 
name,  was  placed  in  a  public  warehouse,  with  directions  from  Barstow  to  Snow 
not  to  deliver  it  until  the  freight  and  balance  due  him  on  the  purchase  were  paid, 
and  of  this  the  defendant  was  informed.  The  defendant,  notwithstanding,  took 
the  flour  away  without  the  knowledge  of  Snow;  but  he  called  on  another  of  the 
owners  and  inquired  for  Snow,  observing  that  he  would  pay  what  was  due  as 
soon  as  a  bill  was  presented.  The  balance  due  Barstow  was  one  dollar  and 
eighty-five  cents,  which  Snow  had  paid  to  Barstow  before  he  brought  the  present 
action.  After  the  action  was  brought,  the  defendant  offered  to  pay  Barstow,  but 
he  refused  to  take  the  money,  and  referred  him  to  Snow.  Subsequently  the  de- 
fendant left  with  anotlier  of  the  owners  one  dollar  and  seventy-five  cents,  re- 
questing him  to  settle  the  bill,  and  agreeing  to  make  up  any  deficiency,  but 
Barstow  would  not  take  it.  Judgment  having  been  rendered  for  the  plaintifl:"in 
the  court  below,  the  Supreme  Court,  in  affirming  it,  said:  "  It  is  very  clear  that 
Barstow,  the  master  of  the  vessel,  had  a  lien  upon  the  barrel  of  flour  for  the 
freight  and  for  the  balance  of  its  price  due  to  him.  And  admitting  the  general 
property  to  have  been  in  Cowing,  he  could  not  legally  take  it  out  of  the  hands 
of  Barstou-  until  he  had  paid  or  tendered  the  sum  due.  The  act  of  taking, 
therefore,  was  a  trespass,  for  v.-hich  Cowing  was  liable  in  damages.  The  only 
question  is,  to  whom  was  he  liable  ?  And  upon  this  question  we  are  inclined  to 
think,  as  it  was  delivered  into  the  special  custody  of  Suow,  with  directions  not 
to  deliver  it  until  the  freight,  ccc,  was  paid,  he  had  such  a  special  property  as 
would  entitle  him  to  the  action.  The  tender  after  action  commenced  cannot 
afiect  this  question.*' 

"We  understand  the  law  to  be  well  settled^  that  in  cases  of  bailment,  unless 
the  bailee  has  the  absolute  right  to  retain  possession  of  the  property  for  a 
definite  time,  the  action  of  trespass  against  a  wrong-doer  may  be  brought  either 
in  the  name  of  the  bailor  or  bailee"  (Redfield,  C.  J.,  in  Strong  v.  Adams,  30 
Vt.  221 ;  Brownell  v.  Manchester,  1  Pick.  232 ;  and  see  Neff  v.  Thompson,  8 
Barb.  213). 

Where  cattle  were  delivered  by  A.  to  B.  under  an  agreement  that  the  latter 
should  keep  them  for  one  year,  and  have  all  that  they  sold  for  over  the  first  cost 
and  interest,  it  was  held  that  B.  had  such  a  qualified  property  in  them  wliile 
they  were  in  his  possession  as  might  be  attached  by  his  creditors,  but  not  after 
their  redelivery  to  A.  B.'s  right  to  payment  for  the  year's  keeping  becoming 
tben  a  personal  riglit  only,  unaccompanied  by  any  lien,  possession,  or  right  of 
control  to  give  him  property  in  the  cattle  (Megee  v.  Beirne,  39  Penn.  St.  R.  50). 

'  Brownell  v.  Carnley,  3  Duer,  9. 

*  In  Brownell  v.  Carnley,  supra,  the  court  said:  "We  are  all  of  opinion  that 
there  must  be  judgment  for  the  plaintifl'.  Tlie  legal  title  of  the  goods  at  tlie 
time  of  their  arrival  was  vested  in  him,  not  merely  by  tlie  terms  of  the  bill  of 
lading,  but  ])y  virtue  of  his  antecedent  advances.  He  had  then  an  absolute 
right  to  sell  tiiem,  and  to  perfect  the  sale  by  a  delivery  to  the  purchaser;  and 
this  not  only  for  the  purpose  of  reimbursing  his  advances,  but  vv-ith  a  view  to  his 
commissions  upon  the  sale,  since,  according  to  the  known  custom  of  merchants. 


550  WHO   MAY   MAINTAIN   THE   ACTION.  §  546. 

§  546.  If  the  bailee  of  goods  have  a  right  to  them  for  a 
given  time,  trespass  will  not  lie  by  the  general  owner  against 
a  third  person  who  takes  them  away  before  the  expiration  of 
the  bailee's  term.^  "  Where  a  person  allowed  another  to 
take  a  number  of  cows  and  sheep,  which  the  other  agreed  to 
return  to  the  owner  within  one  year,  w^itli  the  increase,  and 
to  be  answerable  for  suck  as  might  be  lost,  destroyed,  or  not 
redelivered  within  the  year,  with  interest  on  the  value,  it 
was  held  to  be  a  hiring  for  a  valuable  consideration,  and  not 
a  naked  bailment,  and  that  the  owner  of  the  animals  could 
not  maintain  trespass  against  a  person  who  took  them  away 
from  the  person  who  had  the  custody  of  them  under  the 
aforesaid  agreement,'^  In  an  action  of  trespass  for  taking  a 
pair  of.  oxen  and  a  yoke,  it  appeared  tkat  the  plaintiff  w^as 
the  owner  of  the  property ;  that  he  had  hired  it  to  one  Clark 
for  a  given  time,  w^hich  had  not  expired  W'hen  it  was  taken 
l)y  the  defendant,  but  that  the  same  was  then  in  the  actual 
custody  of  Clark.  It  was  urged  that  the  possession  of  the 
property  by  Clark  under  the  agreement  was  for  (3very  pur- 
pose, except  the  use,  the  possession  of  the  plaintiff.  The 
answer  to  this  was,  that  if  the  use  had  been  merely  by  the 
gratuitous  permission  of  the  plaintiff,  he  might  have  main- 
tained the  action  as  being   in  the  constructive  possession; 


it  vv-as  doubtless  to  secure  these  commissions  tliat  his  advances  were  made.  The 
seizure  of  the  goods  by  the  defendant  was,  therefore,  a  plain  viohition  of  his 
legal  rights.  It  not  merely  prevented  tlieir  exercise,  and  deprived  him  of  the 
beneiits  he  meant  to  secure,  but,  if  continued,  might  have  resulted  in  an  actual 
loss  of  the  moneys  he  had  advanced.  A  decision  more  at  variance  -with  the 
understanding,  and  more  liostile  to  the  interests  of  merchants,  could  not  well  be 
made,  than  to  hold  that  the  prior  rights  of  a  consignee,  having  a  title  and  a  lien, 
are  liable  to  be  thus  sacrificed,  at  the  instance  of  a  general  creditor  of  the  con- 
signor. *  =^  *  ^  Even  had  the  plaintiff  in  this  case  been  only  an  ordinary 
pledgee,  having  no  title  to  the  goods,  and  no  power  of  immediate  sale,  but 
merely  the  right  of  retaining  the  possession  for  his  ultimate  security,  we  must 
still  have  held  that  the  conduct  of  the  defendant  in  depriving  him  of  this 
possession  was  unlawful,  and  not  justified  by  the  process  under  which  he 
acted." 

'  Neff  V.  Thompson,  8  Barb.  213;  but  see  Gibson  v.  Chillicothe  Bank,  11  Ohio. 
N.  S.  311. 

=  Putnam  v.  Wiley,  8  Johns.  433. 

*  One  having  a  special  property  in  chattels  forfeits  his  interest  by  putting 
them  to  a  different  use  from  tliat  w^hieh  the  contract  allows  (Briggs  v.  Oaks,  26 
Vt.  138  ;  Swift  v.  Moseley,  10  Yt.  ^OBJ. 


g  540.  IN   CASE   OF   BAILMENT.  551 

l)ut  that  where,  to  enable  the  bailee  to  have  the  use,  he  must 
liave  the  actual  custody  for  a  certain  time,  and  he  has  paid  a 
consideration  therefor,  then  the  possession  is  in  the  bailee 
exclusive  of  the  owner ;  and  that,  in  the  present  case,  while 
the  contract  was  in  force,  the  plaintiff  would  have  been 
guilty  of  a  wrong  to  Clark  had  he  attempted  to  control  or 
use  the  property  let  to  him.^  And  in  tres2:>ass  for  taking  a 
horse  let  to  hire  from  the  custody  of  the  hirer,  it  was  held 
that  as  the  plaintiff,  at  the  time  the  horse  was  taken,  had 
neither  the  possession,  nor  the  right  of  possession,  the  action 
would  not  lie,  but  that  the  remedy  was  trover.^  ^^ 


'  Soper  V.  Sumner,  5  Vt.  274  ;  Ward  v.  Macauley,  4  T.  R.  489  ;  Hall  v.  Pickard. 
3  Camp.  187;  2  lb.  464. 

'  Clark  V.  Carlton,  1  N.  Harop.  110. 

*  Wilson  V.  Martin,  40  N.  II.  88,  was  an  action  of  trespass  against  a  deputy 
sherifl'  for  attaching  two  harnesses  belonging  to  the  plaintiff,  upon,  a  writ  against 
one  Morrison,  as  the  property  of  Morrison.  It  appeared  that  tlie  plaintiff  had 
left  the  liarnesses  with  one  Page  to  be  cleaned  and  oiled,  which  had  been  done, 
and  that  Page  refusing  to  give  them  up  until  he  was  paid  for  his  labor,  it  was 
arranged  between  him  and  the  defendant  that  they  should  remain  in  Page'a  pos- 
session until  his  claim  for  labor  was  paid,  the  defendant  agreeing  that  if  it  be- 
came necessary,  or  if  he  should  desire  to  take  them  away,  that  he  would  first 
pay  to  Page  the  amount  of  Page's  claim.  The  action  was  brought  within  two 
days  after  this  arrangement,  the  plaintiff  having  first  demanded  the  harnesses  of 
{he  defendant,  and  he  having  refused  to  give  them  up.  It  was  urged  in  argu- 
ment that,  although  not  liable  for  the  original  attachment,  the  defendant  became 
liable  by  the  subsequent  demand  of  the  plaintiff  for  the  harnesses  and  his  refusal 
to  surrender  them.  The  court  said:  "If  we  are  correct  in  the  view  that  the  lien 
of  Page  having  been  asserted,  gave  him  a  vested  right  to  retain  the  possession 
of  the  harnesses  until  that  lieu  was  satisfied,  or  the  possession  parted  with,  and 
the  lien  liad  not  been  satisfied  or  the  possession  parted  with  by  Page,  as  the  case 
distinctly  finds,  then  the  plaintiff,  at  the  time  of  the  demand,  had  no  right  to  the 
possession  of  the  harnesses,  and,  of  course,  could  not  be  injured  by  the  refusal 
of  the  defendant  to  yield  to  h:m  what  he  was  not  entitled  to  have.  The  plaint- 
iff not  having,  at  the  time  of  the  alleged  injury  to  the  harnesses  by  the  defend- 
ant, either  the  actual  or  constructive  possession  of  them,  but  the  same  being 
then  and  still  in  the  hands  of  his  bailee,  who  had,  and  still  has,  a  vested  right 
to  retain  tiiem  until  the  satisfaction  of  his  lien  thereon,  there  must  be  judgment 
on  the  verdict,  properly  taken  in  the  court  below,  for  the  defendant." 

Muggridge  v.  Eveleth,  9  Mete.  233,  was  an  action  of  trespass  against  a  sher- 
iff for  attaching  a  schooner  on  process  against  one  Davidson.  It  was  proved  that 
the  schooner  formerly  belonged  to  Davidson,  but  that  he  sold  and  delivered  her 
to  the  plaintiff',  and  that  the  latter  immediately  let  her  by  parol  to  one  Gerrish, 
who,  at  the  time  of  the  attachment,  was  in  possession  of  the  schocmer,  claiming 
to  be  hirer  and  master,  and  exercising  over  her  the  whole  control.  It  was  held 
that  as  the  plaintiff  had  neitlier  the  actual  nor  constructive  possession  of  the 
.schooner  at  the  time  of  the  alleged  trespass,  or  at  the  commencement  of  the  ac- 
tion, he  was  not  entitled  to  recover.  Hubbard,  J.  :  "  Suppose,  in  this  case,  that 
the  plaintiff,  instead  of  commencing  an  action  of  trespass,  had  brought  replevin 
against  the  sheriff,  and  had  been  put  in  possession  of  the  schooner,  he  could  not 
retain  it  as  against  Gerrish;  and  if  he  should  refuse  to  deliver  it  to  him,  Gerrish 


552  WHO   MAY    MAINTAIN    THE   ACTION.  §  547. 

§  547.  Althougli  au  agister  has  no  lien  for  tlie  keeping  of 
animals,  unless  it  is  so  expressly  agreed,  yet  he  may  maintain 
trespass  against  a  stranger  for  taking  them  away.  Bass  v. 
Pierce*  was  an  action  for  breaking  and  entering  the  plaintiff's 
close  and  carrying  away  a  cow  in  the  plaintiff's  keeping. 
The  evidence  showed  that  the  plaintiff  was  hired  by  one 
Gould  to  pasture  the  cow,  and  that  while  she  was  so  pastured, 
Gould  had  the  use  of  her  for  his  family,  and  drove  her  from 
the  pasture  to  his  house  at  night  to  be  milked,  and  back  to 
the  pasture  in  the  morning.  The  defendant  took  the  cow 
from  the  plaintiff's  field  after  she  had  been  put  in  by  Gould. 

being  guilty  of  no  laclies,  could  maintain  an  action  against  the  plaintiff  for 
damages  for  not  delivering  it;  or  he  might,  perhaps,  maintain  replevin. 
Two  persons  claiming  a  chattel  under  distinct  titles,  cannot  lawfully  be  enti- 
tled to  the  possession  at  the  same  time.  The  right  of  possession  of  one  must  be 
paramount,  and  he  only  can  maintain  trespass  in  case  of  a  wrongful  taking  of  it 
by  a  third  person.  In  the  present  case,  Gerrish  was  lawfully  entitled  to  the  pos- 
session of  the  schooner  at  the  time  of  the  attachment,  and  he,  therefore,  and  not 
the  plaintiff,  can  maintain  an  action  of  trespass  for  the  taking." 

In  the  foregoing  case,  the  jilaintiff's  counsel  argued  that  it  did  not  stand  ou 
the  same  ground  with  ordinary  actions  of  trespass,  because  the  suit  was  against 
an  officer,  who  claimed  to  hold  the  schooner  as  the  property  of  a  third  person. 
But  the  court  said  that  they  did  not  know  of  any  such  legal  distinction.  The 
action  was  for  a  tort  alleged  to  have  been  committed  against  the  plaintiff.  It 
was,  therefore,  incumbent  upon  him  to  prove  in  himself  a  right  to  the  possession 
of  the  property  taken,  otherwise  he  had  not  sustained  the  injury  of  which  he 
complained.  And  if  he  did  not  prove  it,  though  the  defendant  might  be  a 
wrong-doer  in  consequence  of  taking  the  property,  still  for  such  wrongful  act  he 
would  be  responsible,  not  to  the  plaintiff,  but  to  the  person  who  was  unlawfully 
dispossessed  of  his  pi'operty.  It  was  not,  then,  sufficient  for  the  plaintiff  to 
show  that  the  defendant  was  a  wrong-doer,  but  he  must  show  that  the  wrong 
was  done  to  himself.  In  the  same  case  it  was  said  by  the  plaintiff's  counsel  that 
the  defendant's  act  was  the  destruction  of  the  entire  thing,  and  that,  therefore, 
the  plaintiff'  could  recover,  because  the  general  property  was  in  him.  To  this 
the  court  replied  that  the  seizure  of  the  property  was  neither  an  actual  destruc- 
tion of  it,  nor  was  it  to  be  so  implied.  That  if  it  were,  then  replevin  would  not 
lie,  because  the  thing  itself  could  not  be  replevied.  But  that  here  the  schooner 
could  be  replevied  by  a  person  wrongfully  dispossessed,  and  his  writ  would  be 
sustained.  It  was  also  contended  that  by  the  taking  of  the  schooner  the  charter 
was  determined,  and  so  the  plaintiff  had  a  right  to  resume  the  possession  of  her, 
and  consequently  had  a  constructive  possession,  and  might  therefore  maintain 
the  action.  But  the  court  said  that  the  parol  letting  of  the  schooner  to  Gerrish 
being  valid,  the  contract  of  letting  was  not  determined  by  the  unlawful  act  of 
the  defendant;  that  in  a  suit  by  the  present  plaintiff  against  Gerrish  on  the  con- 
tract of  charter,  proof  that  the  schooner  had  been  unlawfully  taken  out  of  Ger- 
rish's  possession,  without  the  act  or  co-operation  of  the  plaintiff,  would  be  no  bar 
to  a  recovery;  that  such  a  disposition  was  no  determination  of  the  contract ;  and 
that  the  party  who  was  dispossessed  unlawfully  must  repossess  himself  of  the 
2>roperty  or  obtain  its  value  ^citing  as  to  the  validity  of  the  parol  letting  of  the 
schooner,  Taggard  v.  Loring,  16  Mass.  336  ;  Thompson  v.  Hamilton,  12  Pick.  438; 
Vinal  V.  Burri'll,  16  Pick.  406;  Bixby  v.  Franklin  Ins.  Co.  8  Pick.  86). 

•  16  Barb.  595.     See  Grinnell  v.  Cook,  3  Hill,  485. 


§§  548,  549.  IN   CASE    OF   BAILMENT.  553 

It  was  held  that  the  plaintiff  was  an  agister  of  the  cow  while 
she  was  in  his  pasture,  and  entitled  to  maintain  the  action. '^^ 

§  548.  The  general  owner  of  personal  property  cannot 
maintain  trespass  against  one  who  has  wrongfully  taken  the 
property  from  the  possession  of  a  pledgee,  because  the  former 
is  not  entitled  to  the  possession.^  Every  pledgee  has,  at 
common  law,  an  absolute  right  to  retain  the  possession  of  the 
property  pledged,  not  only  against  the  pledgor,  but  against 
every  person  not  showing  a  paramount  title,  until  the  condi- 
tions of  the  pledge  have  been  fulfilled.  To  authorize  an  in- 
terference with  his  possession,  in  any  other  case,  an  express 
statutory  provision  changing  the  rule  of  the  common  law  is 
necessary.f 

§  549.  Persons  who  have  only  a  special  property  in  goods 
may  maintain  an  action  for  their  injury — such  as  a  carrier,  a 


•  Gay  V.  Smith,  38  N.  Hamp.  171. 

*  lu  Bass  V.  Pierce,  supra,  the  defendant's  counsel  contended  thnt  the  fact  of 
Gould's  taking  and  keeping  the  cow  at  night,  was  conclusive  evidence  that  the 
plaintiff  was  not  bailee.  The  court  replied,  that  it  was  true  he  was  not  bailee  while 
Gould  had  possession,  but  that  he  was  such  when  the  cow  was  in  his  pasture,  un- 
der the  agreement. 

t  A  pledge,  though  like  a  mortgage,  a  security  for  a  debt,  is  a  mere  bailment 
— a  delivery  of  articles  to  be  kept  until  the  debt  is  paid;  and  it  passes  to  the 
pledgee  a  special  property  only,  while  the  general  property  remains  in  the  pledgor. 
There  i.s,  consequently,  a  marked  difference  between  these  two  kinds  of  securi- 
ties. Possession  is  essential  to  a  pledge,  but  not  to  a  mortgage.  The  mortgage 
is  valid  if  duly  recorded,  though  the  mortgagor  keeps  possession  of  the  property, 
either  by  agreement  or  by  the  permission  of  the  mortgagee. 

In  New  York,  it  is  enacted  (2  Rev.  Sts.  366,  §  120)  that,  "when  goods  or 
chattels  shall  be  pledged  for  the  payment  of  money,  or  the  performance  of  any 
contract  or  agreement,  the  right  and  interest  in  such  goods  of  the  person  making 
such  pledge  may  be  sold  on  execution  against  him,  and  the  purchaser  shall  ac- 
quire all  the  right  and  interest  of  the  defendant,  and  shall  be  entitled  to  the  pos- 
session of  such  goods  and  chattels,  on  complying  with  the  terms  and  conditions 
of  the  pledge."  It  has  been  held,  under  the  foregoing  statute,  that  where  prop- 
erty is  pledged  for  debt,  and  in  the  possession  of  the  pledgee,  a  sheriff,  having 
an  execution  against  the  pledgor,  may,  by  virtue  thereof,  take  the  said  property 
out  of  the  hands  of  the  pledgee  into  his  own  possession,  and  remove  it  and  sell  the 
right  and  interest  of  the  pledgor  therein;  the  New  York  Court  of  Appeals  being 
equally  divided  on  the  question.  But,  in  such  case,  the  pledgee  has  a  right  to 
tlie  possession  of  the  property  until  the  ])urchaser  redeems  it  (Stief  v.  Hart,  1  N. 
Y.  R.  20).  But  the  New  York  statute,  by  its  express  words,  is  confined  to  a  sale 
under  an  execution ;  and  thus,  a  sale  not  of  the  goods  themscls'es,  but  merely  of 
the  interest  of  the  pledgor — that  is,  his  right  to  redeem  them  upon  j)ayment  of 
the  debt  for  which  they  are  pledged.  The  reasons  upon  which  the  statute  is. 
founded  are  not  applicable  to  a  seizure  of  goods  under  an  attachment  (Browneil 
V.  Carulcy,  3  Duer,  9,  per  Oakley,  Ch.  J.). 


554  "WHO   MAY   MAINTAIN    THE   ACTION.  §  550. 

meclianic,  to  wliom  they  have  been  sent  to  be  repaired,  a 
warehouse  keeper,  auctioneer,  shopkeeper,  or  the  master  of  a 
vessel; ^  the  test  being  tliat  the  plaintiff  must  have  had  actual 
possession,  or  the  right  to  take  actual  possession,  at  the  time 
the  act  complained  of  was  committed.^  The  captain  of  a  fly- 
boat,  who  was  hired  by  a  canal  company  at  weekly  wages, 
was  accordingly  held  competent  to  maintain  trespass  for  cut- 
ting a  rope  fastened  to  the  vessel  by  which  it  was  towed 
;dong  an  inland  navigation,  although  the  vessel  and  the  rope 
were  the  property  of  the  company.^  Where  a  person  hired 
a  slave  to  another,  it  was  held  that  the  owner  of  the  slave 
could  not  maintain  trespass  for  an  injury  inflicted  upon  the 
slave  during  the  unexpired  term  for  which  the  slave  Avas 
hired.*  And  where  a  slave  w^as  given  to  a  person  in  trust 
for  another,  who  was  a  married  woman,  and  the  former,  by 
the  terms  of  the  trust,  had  possession  of  the  slave,  it  was  held 
that  the  trustee  was  the  proper  person  to  bring  an  action  for 
an  injury  to  the  slave  resulting  in  his  death.^  But  an  instru- 
ment under  seal,  executed  by  A.  and  wife  only,  releasing  to 
B.  their  claim  to  certain  chattels,  with  a  reservation  that  they 
shall  be  held  by  C.  &  D.,  as  trustees,  for  special  uses,  is  not 
sufficient  evidence  of  property  or  possession  in  C.  &  D.  to 
enable  them  to  maintain  an  action  for  the  injuiy  of  such 
chattels.^  * 

9.  W7ie?'e  there  has  heen  a  conditional  sale. 

§  550.  When  personal  property  has  been  sold  and  deliv- 
ered upon  condition  that  the  vendee  make  j)ayment  within  a 
specified  time,  and  it  is  attached  in  the  possession  of  the 


■Williams  v.  Millington,  1  H.  Blk.  81;  Colwill  v.  Reeves,  2  Canipb.  57G: 
Pitts  V.  Gaince,  1  Salk.  10;  Martini  v.  Coles,  1  M.  &  S.  140. 

=  Lewis  V.  Carsaw,  15  Penu.  St.  R.  31 ;  Corlield  v.  Coryell,  4  Wash.  C.  C.  R. 
;571. 

'  Moore  v.  Robinson,  2  B.  &  Adol.  817.        "  MTarlaud  v.  Smith,  Walker,  172. 
"  McRaeny  v.  Jolmson,  3  Florida  R.  520. 
•=  Kennedy  v.  Waller,  2  Hen.  &  Munf.  415. 

*  Trespass  for  an  injury  to  personal  property  is  triuisitory  (Brice  v.  Vaudcr- 
heyden,  9  Wend.  472;. 


§  551.    WHERE  THERE   HAS   BEEN   A   CONDITIONAL   SALE.  555 

vendee  by  one  of  his  creditors,  as  the  vendor  has  not  the 
right  of  present  possession,  he  cannot  maintain  trespass  for 
the  property  against  the  attaching  creditor  of  the  vendee.-^  * 
It  has,  however,  been  hekl  that,  if  the  condition  has  not  been 
fulfilled,  the  vendor  may  maintain  an  action  against  the 
Avrong-doer  who  has  the  goods  in  his  possession  and  refuses 
to  surrender  them,  notwithstanding  the  conditional  vendee 
has  previously  recovered  damages  for  the  taking.^  f 

§  551.  The  conditional  vendee  of  personal  property  has 

'  Hind  V.  Fleming,  34  Vt.  109.         ''  Hasbrouck  v.  Lounsbury,  26  N.  Y.  598. 

*  In  Bigelow  v.  Huntley  (8  Vt.  151),  the  plaintiff  was  a  conditional  vendor, 
and  it  was  conceded  that  the  vendee  was,  by  the  contract,  entitled  to  possession 
till  the  time  of  payment  expired,  and  the  property  was  attached  before  the  time 
aiTived.  The  court  were  divided.  A  majority  held  that  the  plaintiff  was  enti- 
tled to  recover.  But  the  judgment  was  put  principally  on  the  ground  that  the 
property  had  been  previously  attached  by  another  creditor,  and  the  plaintiff  had 
receipted  it  to  the  officer,  and  could  recover  against  the  last  officer,  upon  his  title 
as  receiptor  to  the  first.     The  action  in  that  case  was  trover. 

t  In  Hasbrouck  v.  Lounsbury,  supra,  the  plaintiff  agreed  with  one  Vauder- 
raark  to  sell  him  a  horse  for  $65,  which  was  to  be  -paid,  with  interest,  nine 
months  thereafter.  Vaudermark  was  to  have  the  possession  of  the  horse,  but  the 
horse  was  to  remain  the  property  of  the  plaintiff  until  paid  for.  The  defendant 
took  possession  of  the  horse,  with  full  knowledge  of  the  foregoing  facts,  by  vir- 
tue of  a  judgment  against  Vandermark,  he  having  bought  the  horse  at  the  exe- 
cution sale.  Vandei'mark  thereupon  sued  the  defendant,  and  obtained  judg- 
ment against  him,  on  the  ground  that  the  horse  was  exempt  from  levy  and  sale, 
which  judgment  was  paid.  The  time  having  exjiired  in  which  Vandermark  was 
to  pay  for  the  horse,  and  payment  not  having  been  made,  the  plaintiff  demanded 
the  horse  of  the  defendant,  and  on  his  refusal  to  deliver  the  same,  this  action 
was  brought,  and  judgment  obtained  therein  against  the  defendant,  which  was 
affirmed  by  the  Court  of  Appeals,  on  the  authority  of  Herring  v.  Hoppock  (15 
N.  Y.  R.  40. ).  Balcom,  J.,  in  delivering  a  dissenting  opinion  (in  which  Emott 
and  Rosekrans,  .J J.,  concurred),  said:  "It  seems  to  me  to  be  very  plain  that  the 
recovery  by  Vandermark  was  a  bar  to  the  plaintiff's  action.  The  defendant  was 
a  stranger  to  the  agreement  under  which  the  plaintiff  delivered  the  horse  to  Van- 
dermark ;  and  it  is  not  at  all  material  that  he  undertook  to  justify  the  taking  and 
conversion  of  the  horse  by  virtue  of  an  execution  against  Vandermark's  property, 
or  that  the  latter  recovered  the  value  of  the  horse,  on  the  ground  that  it  was  ex- 
empt from  levy  and  sale  on  execution  ;  for  the  defendant  had  no  more  right  to 
take  and  sell  the  horse  on  the  execution,  as  Vandermark's  property,  than  as  the 
])roperty  of  a  third  person  ;  and  the  case  is  the  same  that  it  would  have  been  if 
the  execution  had  been  against  the  property  of  a  stranger,  who  never  had  any 
interest  in  the  horse.  It  is  only  when  the  defendant  can  successfully  defend  an 
action  brought  by  the  bailee,  that  the  bailor  can  sue,  notwithstanding  the  prior 
action  ])y  the  bailee.  When  the  bailee  recovers,  he  holds  the  money  recovered 
in  trust  for  the  bailor,  in  lieu  of  the  property.  Now,  as  either  the  plaintiff'  or 
Vandermark  had  the  right  to  sue  the  defendant  for  converting  the  horse,  the 
judgment  recovered  by  Vandermark  was  a  bar  to  this  action.  It  would  be  verj*- 
unjust  to  the  defendant,  were  the  law  otherwise,  for  he  would  be  compelled  to 
pay  for  the  horse  twice,  and  be  legally  harassed  with  two  actions,  when  he  took 
and  sold  the  horse  in  good  faith,  supposing  it  was  the  property  of  Vaudermark, 
and  liable  to  seizure  on  execution  against  his  property." 


55G  WHO    MAY    MAINTAIN   THE  ACTION.  §  551. 

an  assignable  interest  therein.  If,  however,  he  sell  abso- 
lutely, in  disregard  of  the  claim  of  the  original  owner,  the 
latter  may  treat  the  bailment  as  terminated,  and  resume  pos- 
session at  once,  using  no  violence,  and  doing  no  unnecessary 
damage ; "'  but  not  after  a  tender  of  the  full  amount  due, 
made  by  the  vendee  of  the  original  purchaser.  In  Vincent 
V.  Cornell/  oxen  were  sold  to  be  returned  on  a  certain  day 
unless  a  given  sum  was  paid.  The  buyer  sold  the  oxen,  and 
the  court  held  that  he  had  a  right  to  dispose  of  his  posses- 
sion with  his  interest.  Bailey  v.  Colby  ^  was  an  action  of 
trespass  for  two  steers  alleged  to  belong  to  the  plaintiff.  It 
appeared  that  the  defendant  had  sold  the  steers  to  one 
Young,  on  condition  that  they  should  remain  the  defendant's 
property  till  Young  paid  for  them,  and  that  Young  sold 
them  to  the  plaintiff;  that  the  plaintiff  afterward  offered  to 
pay  the  defendant  for  the  steers,  but  that  he  declined  pa}^- 
ment,  unless  he  was  paid  in  addition  wdiat  Young  owed  him 
on  all  other  matters  between  them.  It  was  held  that-,  upon 
a  tender  by  the  plaintiff,  to  the  defendant,  of  the  amount  of 
purchase  money  due,  the  property  vested  absolutely  in  the 
plaintiff:',  and  that  the  defendant,  by  interfering  with  it,  be- 
came a  trespasser.f 

'  13  Pick.  294.  "  34  N.  Ilamp.  29. 

*  In  Sargent  v.  Gile,  8  N.  Hamp.  325,  the  plaintiffs  delivered  furniture  to  one 
Wilson,  upon  a  contract  that  he  should  keep  it  six  months,  and  if  in  that  time 
he  paid  for  it  he  was  to  have  it;  otherwise  he  was  to  pay  an  agreed  price  for  the 
use  of  it.  Wilson  sold  the  furniture  to  the  defendant's,  who  knew  nothing  of  the 
contract,  but  bought  the  property  supposing  it  to  be  his.  It  was  held  that  the 
bailment  was  ended  and  that  the  bailor  might  recover  the  goods  iu  trover. 
Lovejoy  v.  Jones  (10  Fost.  1(55),  was  a  simihir  case. 

t  In  this  case  the  court  said:  "The  interest  of  Young  was  not  a  simple  bail- 
naent,  terminable  at  the  pleasure  of  the  parlies,  and  resting  on  no  personal  confi- 
dence, but  was  connected  with  a  contract  v/hich  gave  him  the  right  to  keep  the 
steers  and  use  them  till  he  paid  for  them,  if  he  did  that  in  a  reasonable  time, 
and  to  the  a!)Solute  title  to  the  property  whenever  such  payment  should  be  made. 
He  had  an  assignable  interest  in  the  steers,  or.  in  other  words,  a  right  to  sell  the 
property  subject  to  the  claim  of  Colby  the  defendant.  If  his  sale  was  of  his 
interest  only,  he  had  done  no  wrong,  and  his  assignee,  the  plaintiff,  was  entitled 
to  hold  the  property,  as  he  held  it  by  his  contract;  and  Colby  had  no  right  to 
resume  the  property  from  Bailey,  any  more  than  he  had  from  Young  himself, 
until  the  reason-able  time  for  payment  had  passed,  and  until  after  he  had  re- 
quested payment  without  success.  When  Bailey,  the  plaintiff',  went  with  Young 
to  Colby,  before  any  demand  made  for  payment,  and  tendered  him  the  balance 
due  for  the  steers,  the  property  became  at  once  vested  in  Bailej%  and  Colby  had 


§  552.  IN   CASE   OF    xVGENCY.  557 

10.  In  cam  of  agency. 

§  552.  An  agent  in  possession  of  personal  property  may 
maintain  trespass  for  its  removal/  or  the  action  may  be 
brought   by  the   principal.^  *     In   trespass   for   taking  and 

no  lono-er  any  right  to  interfere  with  it,  and  he  was  a  trespasser,  as  any  stranger 
would  be,  for  taking  it  away.  Colby  had  no  right  to  ask  payment  of  any  other 
claim  he  had  against  Young;  and  Bailey,  to  perfect  his  title,  was  bound  only  to 
pay  the  amount  Colby  had  agreed  to  take  for  the  steers.  But  if  the  sale  by 
Young  was  a  sale  of  aa  absolute  title  to  the  steers,  in  disregard  of  the  claim  of 
Colby,  Colby  might  treat  the  contract  with  Young  as  violated,  and  the  bailment 
at  an  end,  and  resume  the  property  at  ouce,  doing  no  unnecessary  damage,  and 
using  no  violence,  without  liability  for  any  damage  for  the  taking  or  for  an 
entry  on  land  of  Young  or  Bailey,  to  obtain  it." 

''There  is  a  large  class  of  bailments  where  the  bailment  is  accompanied  with 
other  contracts  or  stipulations,  which  atTect  its  character,  and  give  to  the  bailee 
other  rights  not  incident  to  a  simple  bailment,  and  where  there  is  no  personal 
confidence  and  none  of  the  characters  of  an  estate  at  will,  and  where  it  would  be 
entirely  consistent  with  the  analogies  existing  in  the  case  of  real  estate  to  hold 
that  the  bailee  has  an  assignable  interest  which  may  be  transferred  to  a  third  per- 
son, and  where  such  an  assignment  would  be  enforced  and  protected  as  between 
the  parties,  and  as  against  all  persons  whose  interests  are  not  injuriously  affected 
by  the  transfer.  Of  the  cases  which  present  themselves  as  falling  within  this  class, 
would  be  the  case  of  a  pledge  or  pawn,  where  there  is  ordinarily  nothing  like 
personal  confidence,  and  the  contract  is  in  no  sense  determinable  at  the  pleasure 
of  a  party,  but  the  bailee  has  an  interest,  or,  as  it  might  be  said,  a  quau  estate, 
in  the  goods  till  they  shall  be  redeemed.  In  the  same  class,  would  fall  all  the 
various  cases  of  lien,  where  tlie  bailee  has  a  right,  as  against  the  Ixiilor,  to  insist 
upon  the  possession  of  the  property  until  the  lieu  is  duly  discharged  by  pay- 
ment, or  the  performance  of  other  conditions." 

"  The  law  seems  to  be  well  settled  in  the  case  of  a  pawn,  that  the  pawnee 
may  sell  and  assign  all  his  interest  in  the  pawn ;  or  he  may  convey  the  same  in- 
terest conditionally,  by  way  of  pawn  to  another  person,  without,  in  either  case, 
destroying  or  invalidating  his  security.  But  if  the  pledgee  should  undertake  to 
pledge  the  property  (not  being  negotiable  securities),  for  a  debt  beyond  his  own, 
or  to  make  a  transfer  thereof  to  his  own  creditor,  as  if  he  was  absolute  owner, 
it  is  clear  that  in  such  case,  he  would  be  guilty  of  a  breach  of  trust,  and  his 
creditor  would  acquire  no  title  (beyond  that  held  by  the  pawnee,  says  Story, 
Bailm.  215).  It  would  admit  of  controversy,  whether  the  creditor  could  retain 
the  pledge  till  the  original  debt  was  discharged,  and  whether  the  owner  might 
not  recover  the  pledge,  as  if  the  case  were  a  naked  tort  without  any  right  in  the 
first  pledgee"  (Bell, ".J.,  in  Bailey  v.  Colby,  34  N.  Hamp.  29,  citing  Southerin  v. 
Meudum,  5  N.  Hamp.  420;  Whittemorev.  Gibbs,  4  Fost.  484;  Mores  v.  Conham, 
Owen,  123;  Ratcliff  v.  Davis,  1  Buls.  29;  Jarvis  v.  Rogers,  15  Mass.  389,  408; 
Man  V.  Shiffner,  2  East,  523;  M'Combie  v.  Davies,  7  East,  6,  7  ;  Goss  v.  Emerson, 
3  Fost.  42 j. 

'  Craig  v.  Gilbreth,  47  Maine,  416.  "  Gillett  v.  Ball,  9  Penn.  St.  R.  13. 

*  Where  A.  agrees  to  build  a  barn  for  B.  by  a  specified  time,  the  timber  to  be 
taken  from  B.'s  land,  A.  has  not  such  a  property  in  tlie  timber  cut  and  drawn  for 
the  purpose  of  finishing  the  barn  tliat  it  may  be  taken  in  execution  for  his  debts. 
Gallup  v.  Josselyn,  7  Vt.  334,  was  an  action  of  trespass  against  a  deputy  sheriff 
for  attaciiing  and  carrying  away  boards  and  timber  on  a  writ  against  one  Ship- 
ley. It  was  proved  that  some  time  previous  to  the  attachment,  the  plaintitt"  liad 
entered  into  a  written  contract  with  Shipley,  by  which  Shipley  was  to  build  a 
barn  on  the  land  of  the  plaintiff,  with  permission  to  use  timber  upon  the  land  of 
the  plaintiff  sufficient  for  that  purpose;  that  Shipley  cut  and  took  the  timber 
from  the  plaintiff's  land  in  pursuance  of  the  contract,  hired  it  sawed,  and  drew 


558  WnO   MAY   MAINTAIN    THE   ACTION.  §  552. 

carrying  away  lumber,  it  appeared  that  it  was  owned  by  one 
Morse,  who  mortgaged  it  to  the  plaintiff;  that  a  son  of  Morse, 
as  his  father's  agent,  accompanied  the  plaintiff  to  the  mill 
where  the  lumber  lay  for  the  purpose  of  giving  him  posses- 
sion, and  that  the  lumber  was  in  charge  of  one  Braynard, 
who  was  requested  by  the  plaintiff"  to  take  care  of  it  for  the 
plaintiff',  as  he  had  before  done  for  Morse,  to  which  Braynard 
made  no  ol)jection.  It  was  held  that  the  plaintiff"  had  suffi- 
cient possession  to  maintain  the  action  against  the  defendant, 

it  from  the  mill  on  to  the  land  of  the  plaintiff,  to  the  place  where  it  was  attached 
by  the  defendant;  that  Shipley  had  partly  completed  the  barn,  and  was  at  work 
thereon  when  tlie  property  was  attached;  that  the  timber  and  boards  at  the  time 
of  the  attachment  were  lying  within  twenty  feet  of  the  barn,  for  the  purpose 
of  being  used  in  its  construction,  and  that  the  plaintiff  was  advising  in  relation 
to  the  building  of  the  barn  up  to  the  time  of  the  attachment,  which  was  four  or 
five  days  after  the  time  fixed  Ijy  tlie  contract  for  completing  the  barn.  Judg- 
ment having  lieen  rendered  for  the  plaintiff  in  the  County  Court,  the  Supreme 
Court,  in  affirming  the  judgment,  said:  "It  may  be  veiy  questionable  wliether, 
if  Gallup  had  sold  the  land  whereon  the  timber  grew,  it  would  not  have  so  far 
rescinded  the  contract  as  that  Shipley  would  have  been  under  no  obligation  to 
fulfil.  At  all  events,  Gallup  would  have  been  liable  for  all  damages,  and  if 
Shipley  had  procured  the  timber  elsewhere,  Gallup  would  have  been  under  obli- 
gation to  pay  for  the  same.  If  the  timber,  either  before  or  after  it  was  sawed, 
had  been  burnt  up  without  fault,  it  would  have  been  so  far  Gallup's  loss  as  that 
Shipley  might,  for  the  same  purpose,  have  procured  more  from  the  same  lot.  It 
follows  that  the  timber,  when  cut  from  the  stump,  was  the  property  of  Gallup. 
It  could  not  thereafter  become  the  property  of  Shipley  by  the  labor  bestowed  on 
it  in  manufacturing  it  for  the  use  intended.  So  long  as  it  could  be  traced  and 
ideutitled  it  still  remained  his.  For  at  no  period  previous  to  the  taking  do  we 
find  any  act  of  the  plaiutiff  manifesting  his  intention  to  part  with  the  property. 
The  case  from  Johnson,  of  the  owner  of  timber  being  allowed  to  recover  for  the 
property  when  manufactured  into  shingles,  is  a  very  strong  case  to  show  that 
the  owner  is  not  divested  of  his  ownership  by  any  alterations  the  property  may 
undergo,  so  long  as  it  can  be  identified.  It  is  true  that  in  that  case  the  property, 
i.  e.  trees  from  which  shingles  w-ere  manufactured,  was  taken  without  the  con- 
sent of  the  owner.  But  I  apprehend  that  the  principle  on  vt^hich  the  decision 
was  founded  is  applicable  to  this  case.  If  the  owner  of  timiier  trees  is  permitted 
to  retain  his  ownership  when  it  is  thus  manufactured  into  boards  or  shingles, 
when  it  is  taken  for  that  purpose  without  his  consent,  it  is  ditficult  to  see  why 
be  should  be  divested  of  liis  ownership  when  taken  with  his  consent  to  be  manu- 
factured for  liis  use.  Upon  the  construction  of  this  contract,  and  "from  the  na- 
ture of  the  case,  we  are  of  opinion  that  the  property  of  the  boards  and  timber  for 
the  taking  of  which  this  action  is  brought,  was  in  the  plaintiff'.  The  posses- 
sion of  Shipley  was  that  of  an  agent  to  manufacture  for  the  plaintiff's  use,  and 
he  had  no  other  possessicm  than  he  had  of  the  team  for  drawing  the  same; 
nothing  more  than  every  hired  man  or  agent  has  of  property  intrusted  to  him  to 
use  in  the  business  of,  and  for  the  benefit  of  the  owner.  If  Shipley  had  con- 
verted it  to  any  other  use,  he  would  have  been  immediately  liable,  and  if  any 
one  took  it  from  Shipley  while  in  the  employ  of  the  plaintiff,  in  completing  the 
job,  such  person  would  be  immediately  answerable  to  the  plaintiff,  and  it  would 
be  a  direct  injury  to  the  property  of  the  plaintiff  in  the  hands  of  his  agent,  and 
of  course  an  injury  to  the  possession,  for  which  the  action  of  trespass  is  the  ap- 
propriate remedy." 


§  552.  IN   CASE   OF    AGENCY.  559 

who  showed  no  title.^  *  In  an  action  of  trespass  for  taking 
flour  from  a  mill,  it  was  proved  that  grain  was  purchased  by 
an  agent  of  the  plaintiff  with  money  furnished  by  the  latter, 
and  the  flour  in  question  made  therefrom  and  set  apart  in  the 

'  Morse  v.  Pike,  15  N.  Hamp.  529. 

*  Mitchell  V.  Stetson,  7  Cush.  435.  was  an  action  of  trespass  against  a  deputy 
sheriff  for  attacliing  timber  and  other  personal  property  on  a  writ  against  the 
father  of  the  plaintiff.  The  plaintiff  was  the  owner  of  the  land  from  which  the 
lumber  was  taken,  having  purchased  and  paid  for  it  by  his  own  promissory  notts. 
By  an  agreement  between  him  and  his  father,  the  latter  was  to  cut  off  and  sell 
the  timber  standing  on  the  land,  and  out  of  the  proceeds  to  pay  for  the  labor 
and  other  charges  attendant  thereon,  and  to  appropriate  the  balance  towards 
payment  of  the  notes  given  for  the  purchase  money.  If  any  surplus  was  left,  it. 
was  to  be  paid  over  to  "the  plaintiff.  At  the  trial  in  the  Common  Pleas,  the  jury 
found  for  the  plaintiff,  and  the  Supreme  Court,  in  overruling  exceptions  to  the 
verdict,  remarked  that  the  most  conclusive  test  as  to  the  riglit  of  the  plaintiff  to 
recover  the  full  value  of  the  property  at  the  time  of  the  trespass  w^as  to  be  found 
in  the  consideration  that,  upon  the  evidence  in  the  case,  it  was  clear  that  he 
could  have  maintained  replevin  for  the  property  taken  by  the  defendant.  The 
fallacy  of  the  argument  on  the  part  of  the  defendant  consisted  in  regarding  the 
services  of  the  father  in  cutting  and  drav.'ing  the  lumber  as  creating  in  him  a 
right  of  property  to  the  lumber  itself.  But  there  was  no  agreement  to  that  effect 
between  the  parties.  It  was  the  common  case  of  principal  and  agent.  No  prop- 
erty was  vested  in  the  father  by  tlie  arrangement  between  him  and  his  son.  The 
former  was  to  be  paid  out  of  the  property  of  the  principal  for  his  own  labor  and 
the  charges  of  executing  the  agency,  but  he  acquired  no  title  to  the  property 
which  was  intrusted  to  his  care.  The  right  to  deduct  from  the  proceeds  of  the 
property,  when  sold,  a  sum  sufficient  to  pay  for  the  labor  and  expense  laid  out  in 
preparing  it  for  market,  was  only  one  mode  of  paying  a  debt  fot  which  tlic 
plaintiff  was  liable  as  principal,  but  it  did  not  change  the  legal  relation  of  the 
parties,  or  vest  any  title  to  the  lumber  in  the  agent  as  against  third  persons. 

Trout  V.  Kennedy,  47  Penn.  St.  R.  387.  was  an  action  of  trespass  for  taking 
aud  carrying  av/ay  lumber,  the  title  to  which  the  plaintiff  alleged  he  had  ac- 
quired at  a  sheriff's  sale  of  the  property  of  one  Brooks.  It  appeared  in  evidence 
that  Brooks,  being  the  owner  of  a  saw-mill,  and  also  of  the  timber  standing  on 
certain  land,  agreed  to  give  the  use  of  tlie  mill  to  the  defendant  for  the  purpose 
of  manufacturing  the  timber  into  lumber.  By  the  agreement,  the  defendant  was 
to  cut  the  logs,  get  them  to  the  mill,  saw  them  out,  pile  the  boards,  and  give  to 
Brooks  one-half  the  boards,  to  be  divided  in  the  pile.  Under  tliis  contract,  two 
hundred  and  seven  thousand  feet  were  manufactured  and  piled,  but  the  defend- 
ant not  only  refused  to  make  any  division,  but  removed  from  the  mill  a  con- 
siderable portion  of  the  lumber,  transporting  it  about  three  miles  in  the  direction 
of  the  market.  After  this  had  been  done,  an  execution  was  issued  against 
Brooks,  under  which  the  sheriff  levied  upon  his  interest  in  the  two  hundred  and 
seven  thousand  feet  of  lumber,  and  made  a  sale,  returning  that  he  had  sold  one 
hundred  aud  three  thousand  five  hundred  feet  to  the  plaintiff.  It  was  held,  that 
nothing  in  the  agreement  vested  in  the  defendant  any  interest  so  long  as  the 
lumber  remained  undivided;  that  it  simply  constituted  him  the  agent  of  the 
owner  to  cut  the  logs,  haul  them  to  the  mill,  saw  them  into  boards,  and  place 
the  boards  in  piles,  and  that  the  provision  for  payment  was  equivalent  to  an 
allowance  by  the  principal  to  the  agent  of  one  half  the  product  of  his  labor. 
Held  further,  that  the  plaintiff,  by  his  pnrchase  at  the  sheriff's  sale,  acquired 
title  to  the  whole  of  the  interest  of  the  owner,  and  not  to  the  half  of  the  number 
of  feet  returned  as  sold,  and  that  as  the  taking  was  under  a  claim  of  right  to  the 
whole,  the  hauling  away  was  not  a  succession  of  disconnected  trespasses,  but  one 
continuous  act,  for  which  damages  were  recoverable  in  a  single  suit. 


560  WHO   MAY   MAINTAIN   THE   ACTION.  §  553. 

mill  for  delivery  to  him.  It  was  held  that  the  plaintiff  was 
entitled  to  recover,  although  it  was  proved  that  he  said  he 
would  look  to  his  agent  for  the  money  furnished.^  Boynton 
V.  Turner  ^  was  an  action  of  trespass  for  upsetting  and  break- 
ing the  stage  coach  of  the  plaintiffs  intestate.  It  appeared 
that  the  minor  son  of  the  intestate  hired  a  horse  and  chaise 
to  carry  home  his  sick  brother,  telling  the  livery  stable  keeper 
of  whom  he  hired  it  that  he  could  not  then  pay  him,  and  that 
his  father  received  all  of  his  wages ;  and  that  upon  telling 
his  father  how  he  had  obtained  the  conveyance,  his  father 
directed  him  to  pay  for  the  same  out  of  his  wages.  The 
chaise,  while  in  the  son's  possession,  having  been  upset  and 
badly  broken  by  a  stage  coach  driven  by  the  defendant,  the 
question  was,  whether  the  intestate  had  such  a  property  in 
the  chaise  as  would  entitle  him  to  maintain  the  present  ac- 
tion. The  Supreme  Court,  in  holding  the  affirmative,  said : 
"  The  case  is  to  be  considered  as  if  the  intestate  had  given 
his  son  a  previous  authority  to  hire  the  horse  and  chaise. 
This  ratification  of  his  son's  conduct  had  relation  back  to  the 
hiring,  and  so  the  special  property  must  be  considered  to 
have  been  in  the  father  from  the  beginning.  He  was  then 
liable  to  the  general  owner,  and  therefore  entitled  to  this  ac- 
tion to  indemnify  himself  for  such  liability." 

§  553.  The  lien  of  a  factor  continues  only  while  he  has 
the  possession.  Therefore,  if  he  pledges  the  goods  for  his 
own  debt,  or  suffers  them  to  be  attached,  or  otherwise  parts 
with  them  voluntarily,  the  lien  is  lost,  and  the  owner  may 
trace  and  recover  them,  or  he  may  sue  in  trespass,  if  they  are 
forcibly  taken  ;  for  his  possession  continued  notwithstanding 
the  lien ;  and  none  but  the  factor  himself  can  set  up  this 
privilege  against  the  owner.  Holly  v.  Huggeford  ^  was  an 
action  of  trespass  against  a  deputy  sheriff  for  attaching  the 
goods  of  the  plaintiff,  while  in  the  custody  of  one  Lobdell 
to  whom  the  goods  had  been  consigned  to  sell  on  commis- 


'  Thomas  v.  Snyder,  23  Penn.  St.  R.  515. 

'  13  Mass.  391.  '8  Pick.  73, 


§  554.  TENANTS    IN   COMMON.  561 

sion.  The  principal  objection  that  was  made  to  the  verdict, 
which  was  for  the  plaintiff  in  the  court  below,  arose  from 
the  supposed  lien  which  Lobdell  had  on  the  goods  attached 
as  factor,  he  having  accepted  drafts  drawn  by  the  plaintiff, 
the  balance  at  the  time  of  the  attachment  being  in  his  favor. 
It  was  argued  that  his  lien  so  destroyed  the  right  of  posses- 
sion in  the  plaintiff,  that  he  could  not  maintain  the  present 
action.  It  was,  however,  held  that  the  objection  was  not 
tenable.* 

11.  Tenants  in   common. 

§  554.  Although  an  action  of  trespass  may  be  maintained 
by  a  tenant  in  common  of  goods  against  his  cotenant,^  yet, 
as  tenants  in  common  are  seized  or  possessed  of  the  subject 

'  Diiiley  v.  Grimes,  27  Md.  440. 

*  The  right  of  lien  at  common  law  was  originally  confined  to  cases  where 
persons,  from  the  nature  of  their  occupation,  were  under  obligation,  according 
to  their  means,  to  receive  and  be  at  trouble  and  expense  about  the  personal  prop- 
erty of  others,  and  was  limited  to  certain  trades  and  occupations  necessary  for 
the  accommodation  of  the  public — such  as  common  carriers,  innkeepers,  farriers 
and  the  like.  But  in  modern  times,  the  right  has  been  extended  so  far,  that  it 
may  now  be  laid  down  as  a  general  rule,  to  which  there  are  few  exceptions,  that 
every  bailee  for  hire,  who  by  labor  and  skill  has  imparted  an  additional  value  to 
the  goods  of  another,  has  a  lien  upon  the  property,  for  his  reasonable  charges  in 
relation  to  it.  and  a  right  to  retain  it  in  his  possession  until  those  charges  are 
paid.  This  includes  all  such  mechanics,  tradesmen  and  laborers,  as  receive 
property  for  the  purpose  of  repairing,  cleansing  or  otherwise  improving  its  con- 
dition (Wilson  V.  Martin,  40  N.  Ilamp.  88). 

Where  a  person,  who  has  agreed  to  transport  goods,  after  part  performance, 
fails  to  fulfil  Lis  contract,  he  cannot  keep  the  goods,  on  the  ground  of  a  lien,  for 
what  he  has  done  (Hodgdon  v.  Waldron,  9  New  Hamu.  66).  Alien  for  the  price 
of  labor  and  services  performed,  al)out  goods  bailed,  is  in  the  nature  of  an  im- 
plied contract  that  the  party  who  has  performed  the  labor  shall  bold  the  goods 
uniil  he  receives  the  pay  for  doing  what  he  had  undertaken  to  perform  al^out 
them  at  the  request  of  the  owner.  But  if  he  has  not  fully  pjrformed  what  he  under- 
took to  do.  such  a  contract  cannot  fairly  l)e  inferred.  And  besides,  to  allow  him 
to  hold  the  goods,  might,  in  efi'ect,  in  many  cases,  deprive  the  other  party  of  the 
right  to  have  the  damages  for  tlie  non-performance  of  the  contract  deducted. 
He  might  be  compelled  to  pay  the  amount  demanded  in  order  to  gain  possession 
of  his  goods.  According  to  decisions  in  some  of  the  States,  he  would  not  be 
entitled  to  compensation,  and  of  course  could  have  no  lien.  In  New  Hampshire, 
although  he  may  recover  the  value  of  the  benefit  his  employer  has  received,  the 
other  party  is  cntitleri.  if  he  elects,  to  have  the  damages  "he  has  sustained  by 
reason  of  the  non-performance  of  the  residue  deducted;  and  those  damages  be- 
ing of  uncertain  amount,  it  is  not  only  uncertain  what  the  bailee  is  entitled  to 
receive,  but  whether  he  will  in  fact,  on  the  adjustment,  be  entitled  to  receive 
anytiiing.  Under  such  circumstances,  he  cannot  be  permitted  to  hold  the  goods 
by  virtue  of  a  lien,  until  this  is  settled  (Brittoa  v.  Turner,  6  N.  H.  481). 
As  to  liability  of  jjrincipal  for  wrongful  acts  of  agent,  see  ank^  §  41). 
Vol.  I.—  36 


562  WHO    MAY   MAINTAIN   THE   ACTION.  §  555- 

of  the  tenancy  per  my  et  per  tout — by  the  moiety  and  by 
all, — and  each  has  possession  as  well  of  every  part  as  the 
whole,  one  tenant  in  common  cannot  maintain  such  an  action 
against  his  cotenant,  merely  for  taking  and  holding  the 
thing  held  in  common.  Littleton  ^  says :  "  If  two  be  pos- 
sessed of  chattels  personal  in  common,  by  divers  titles,  as  of 
a  horse,  an  ox,  or  a  cow  ;  and  if  one  take  the  whole  to  him- 
self out  of  the  possession  of  the  other,  the  other  hath  no 
remedy  but  to  take  this  from  him  who  hath  done  to  him  the 
wrong,  to  occupy,  <fec.,  when  he  can  see  his  time."  Since  a 
right  to  take,  and  a  right  to  resist  the  taking,  cannot  exist 
in  different  persons  at  the  same  time,  it  follows  that  a  tenant 
in  common  of  personal  property  cannot  take  the  property  by 
force  from  his  cotenant.  But  if  he  can  get  possession  with- 
out a  resort  to  force,  he  can  lawfully  hold  the  property  and  pro- 
tect his  possession  by  force.^ 

§  555.  One  tenant  in  common  can  sell  and  convey  his  in- 
terest in  the  joint  projDerty,  and  the  purchaser  will  become 
a  tenant  in  common  with  the  other  owner,  subject  to  the 
rights  and  oblis^ations  of  the  person  whose  interest  he  has 
purchased.  If  one  tenant  in  common  sells  the  entire  chattel 
without  the  consent  of  the  other  tenant,  the  purchaser  ac- 
quires a  right  to  the  possession  of  the  whole,  the  possession 
of  one,  being  the  possession  of  both.  The  other  tenant  is 
not  divested  of  any  right  by  such  sale.  He  may,  at  his 
election,  affirm  the  sale  and  sustain  an  action  against  his  co- 
tenant  for  a  moiety  of  the  consideration  received,  or  bring 
an  action  of  trespass.  If  he  do  the  latter,  he  will  not  there- 
by affirm  the  sale  ;  though  it  is  probable  that  a  recovery  and 
satisfaction  in  trover  against  the  cotenant,  would  have  the 
effect  to  vest  the  whole  chattel  in  the  purchaser.^  * 

'  Litt.  200,  a,  §  323;  and  see  Arch.  Civ.  PI.  39;  1  Chit.  PI.  170;  Ham.  K  P. 
250. 

^  Coke  on  Litt.  199,  I ;  Hemdon  v.  Bartlett,  4  Porter,  481 ;  King  v.  Phillips, 
1  Lansing,   421. 

'  Welch  V.  Clark,  12  Vt.  681. 

*  An  executory  agreement  made  by  one  of  two  owners  of  personal  property  to 
sell  it,  does  not  disprove  their  joint  ownership  or  bar  their  joint  recovery  in  an  ac- 


§  550.  TENANTS   IN   COMMON.  563 

§  556.  When  personal  property  is  indivisible,  and  for 
that  reason  cannot  be  partitioned,  there  is  no  way  in  which 
one  of  several  owners  can  have  the  use  of  it,  if  the  other,  be- 
ing in  possession,  refuses  to  surrender  it.^  *  As  a  general 
rule,  the  property  held  in  common  cannot  be  divided  unless 
by  the  consent  of  all  the  owners.  One  tenant  in  common 
cannot  set  apart  a  portion  of  the  common  property  for  his 
cotenant,  and  hold  the  remainder  as  his  own,  however  just 
may  be  the  division.  This  must  be  so,  when  the  property 
held  in  common  consists  of  several  things  of  different  quali- 
ties or  value,  or  where  it  embraces  but  one  thing  which  can- 
not be  divided  without  destroying  its  nature  or  identity.^ 
Where,  however,  personal  property,  severable  in  its  nature, 
in  common  bulk,  and  of  the  same  quality,  is  owned  by  sev^- 
eral  as  tenants  in  common,  each  tenant  may  sever  and  appro- 
priate his  share,  if  it  can  be  determined  by  measurement  or 
weight,  without  the  consent  of  the  others,  and  sell  or  destroy 
it  without  being  liable  to  them  in  an  action  for  the  conversion 
of  the  common  property.^  f     So,  likewise,  an  entire  change 

tion  of  trespass  for  taking  and  carrying  it  away.  The  question  in  such  case,  is  not 
whether  both  the  pluintitts  made  a  contract  to  furnish  the  property,  but  whether 
they  both  owned  it,  and  had  the  possession,  or  a  riglit  to  the  immediate  posses- 
sion, wlien  the  alleged  trespass  was  committed  (Talmadge  v.  Scudder,  38  Penn. 
St.  R.  517). 

Where  wheat,  belonging  to  two  persons,  is  mingled  in  a  common  bin,  with 
the  knowledge  and  assent  of  both  parties,  they  are  thereby  made  tenants  in  com- 
mon of  it;  and  the  disposal  of  the  entire  mass  by  one  of  the  cotenants  will 
render  him  liable  to  an  action  at  the  suit  of  the  other  (Nowlen  v.  Colt,  6  Hill, 
461). 

'  Hyde  v.  Stone,  9  Cowen,  230;  Gilbert  v.  Dickerson,  7  Wend.  449. 

■'  Forbes  v.  Shattuck,  23  Barb.  568.  '  Tripp  v.  Riley,  15  Barb.  333. 

*  By  the  civil  law,  tenants  in  common  were  under  an  implied  engagement  to 
divide  the  property,  held  in  common,  when  any  one  of  the  parties  concerned 
desired  it  (Domat,  B.  2,  tit.  5).  By  several  ancient  English  statutes,  the  sume 
result  might  be  attained  with  respect  to  real  property  by  the  aid  of  the  Court  of 
Chancery  (Coke's  Inst,  by  Thomas,  vol.1,  p.  789,  u.  20).  The  substance  of  these 
statutes  was  early  adopted  in  New  York,  and  is  still  retained. 

Where,  by  the  terms  of  a  contract  l)etvveen  A.  and  B.,  a  crop  of  grain  raised 
by  B.  on  the  land  of  A.,  is  to  be  secured  in  the  barn  of  A.,  and  there  threshed 
by  B.,  and  divided  between  them,  an  attachment  of  any  part  as  the  share  of  B., 
before  the  crop  is  thus  secured,  threshed,  and  divided,  does  not  work  a  sever- 
ance of  the  shares.  If,  therefore,  after  such  attachment,  A.  takes  the  part  at- 
tached and  deposits  the  same  in  his  barn,  such  taking  is  not  a  trespass  as  against 
the  officer  making  the  attacliment  (Bishop  v.  Doty,  1  Vt.  R.  37). 

t  In  an  action  of  trover,  for  carrying  away  a  quantity  of  nnthreshed  wheat 
and  straw,  it  appeared  that  the  plaintiff  and  defendant  cultivated  a  farm  on 


564  WHO    MAY   MAINTAIN   THE   ACTION.  §  557. 

may  lawfully  be  wrought  in  a  chattel  by  a  tenant  in  common 
in  possession,  if  the  so  doing  is  the  only  means  of  preserving 
it ; — as  in  the  case  of  the  extraction  of  oil  from  a  whale, 
which  is  in  fact,  a  preservation  of  the  common  property. 
There  the  chattel  is  turned  to  its  customary  and  profitable 
use — to  the  only  use  ultimately  intended  or  valuable.  And 
although  the  form  is  altered,  the  change  will  not  prevent  the 
other  tenant  from  taking  and  using  it ;  and  without  this 
change  the  property  will  be  lost.^ 

§  557.  But  one  tenant  in  common  cannot  lawfully  do 
anything  to  the  common  propei'ty  which  may  diminish  its 
value  as  a  whole,  or  injure  or  endanger  the  interest  of  his 
cotenants ;  such  as  severing  and  converting  a  portion  of  the 
growing  crop  of  grain  before  it  is  ready  for  harvest  or 
ultimate  use  ;  severing  and  converting  part  of  a  number  of 
animals  in  the  process  of  fattening,  to  be  butchered  for  sale 
or  food  ;  or  severing  and  converting  a  portion  of  any  common 
property  in  the  process  of  being  improved  for  the  benefit 
of  the  owners.  In  such  cases,  each  tenant  owes  to  the 
other  tenants  his  exertions  according  to  the  nature  and 
terms  of  his  connection  with  them,  for  the  preservation  and 
improvement  of  the  common  property;  and  the  property  as 
between   them,  is   not    severable    until    its    maturity.^     In 


shares;  that  it  was  the  defendant's  duty  to  harvest,  thresh,  and  clean  the  wheat 
and  to  deliver  one-half  of  it  to  the  plaintiff  at  his  barn  on  the  farm,  measured 
in  the  half  bushel;  that  instead  of  taking  all  the  wheat  to  the  plaintiff's  baru, 
to  be  threshed  and  cleaned  there,  the  defendant  was  proceeding  to  divide  it  in 
the  sheaf,  and  to  take  one  half  to  his  own  barn,  and  the  other  to  the  plaintifPs, 
when  the  plaintiff  came,  forbade  the  defendant's  drawing  or  touching  any  of  it, 
and  caused  the  defendant  and  the  men  in  his  employ  to  be  arrested  for  what 
they  had  done.  The  defendant  got  no  more  than  his  half  of  the  whole  wheat; 
but  to  be  entitled  to  that,  he  was  bound  to  thresh  and  clean  the  plaintiff's  half 
and  deliver  it  at  his  barn  by  measurement.  If  the  wheat  was  to  be  considered 
as  divided  in  the  sheaf,  then  the  defendant  got  inorethan  his  sliare,  by  the  value 
of  the  labor  necessary  to  thresh  and  clean  the  plaintiflf's  half.  There  was  evi- 
dence tending  to  prove  that  the  performance  of  this  labor  by  the  defendant  was 
prevented  by  the  2)laintiff,  v.ho  claimed  the  whole  wheat,  and  took,  threshed  and 
disposed  of  his  own  half,  as  divided  by  tl'e  defendant,  and  took  possession  of 
and  raked  the  tield.  It  was  lield  that  the  plaintiff,  by  this  claim  and  conduct, 
had  waived  the  performance  by  the  defendant,  of  any  further  acts  as  a  tenant  in 
common  (Forbes  v.  Shattuck,  22  Barb.  5G8). 

'  Fennings  v.  Grenville,  1  Taunt,  241.        ^  Forbes  v.  Shattuck,  supra. 


§558.  TENANTS    IN   COMMON.  505 

Reclingtou  v.  Chase,^  tte  plaintiffs  owned  an  undivided  third 
part  of  certain  shot  iron.  The  whole  was  taken  by  the 
defendants  who  had  purchased  the  other  two  thirds,  and 
mixed  by  them  wdth  other  iron,  and  manufactured  into 
various  articles,  so  that  the  shot  iron  could  no  longer  be 
traced  or  identified ;  and  these  articles  were  sold  by  the 
defendants.  It  was  held  that  as  the  common  property  had 
been  placed  as  completely  beyond  the  plaintiffs'  reach,  as 
the  destruction  of  it  would  have  done,  they  were  entitled  to 
recover, 

§  558.  Tenants  in  common  of  personal  property  must 
joiu  in  an  action  at  law  for  the  recovery  of  damages  caused 
by  an  injury  to  it.  In  case  of  the  death  of  any  part  owner, 
after  the  injury  is  sustained,  the  right  of  action  survives  to 
the  surviving  part  owners,  who  must  afterward  pay  to  the 
personal  representatives  of  the  deceased  the  value  of  his 
share.^  *  There  is  a  conflict  of  authority  as  to  the  effect  of  a 
settlement  by  one  of  several  tenants  in  common  for  the 
wrongful  taking  of  the  common  property.  In  New  York, 
such  a  settlement  has  been  held  only  to  inure  as  a  settlement 
of  the  damages  belonging  to  the  party  settling.^  f     On  the 

'  44  N.  Hamp.  36.  =*  Bucknam  v.  Brett,  35  Barb.  596. 

'  Gock  V.  Keneda,  29  Barb.  120. 

*  Although  the  general  rule  is,  that  tenants  in  common  of  personal  property 
must  join  in  an  action  to  recover  for  an  injury,  because  the  injury  is  joint,  and 
tliey  recover  joint  damages;  yet  the  injury  is  not  joint  when  the  share  of  one 
tenant  in  common  has  been  lawfully  taken  and  sold  ;  for  as  it  respects  that  one, 
the  justification  is  complete.  In  the  latter  case,  the  tenants  in  common  do  not 
suffer  a  joint  injury,  and  they  are  not  jointly  interested  in  the  damages  to  be 
recovered  (Lothrop  v.  Arnold,  25  Maine,  136 ;  Melville  v.  Brown,  15  Mass.  83). 

Where  it  appears,  that  some  of  several  plaintiffs  were  made  parties  without 
their  knowledge  or  consent,  a  nonsuit  will  be  granted  as  to  all.  In  Brown  v. 
Wentworth,  46  N.  Hamp.  490,  which  was  an  action  of  trespass  for  destrojing 
a  lead  {)i[)e,  four  of  the  five  coplaintiffs  showed  to  the  court,  tliat  the  action  was 
brought  without  their  consent,  knowledge,  or  authority,  and  asked  to  be  non- 
suited, which  was  done  as  to  all  the  plaintiffs.  It  did  not  appear  that  any 
application  to  those  four  plaintiffs  to  permit  their  names  to  be  used  in  the  action, 
or  an  offer  of  indemnity  to  them  had  ever  been  made  until  after  they  had 
presented  their  petition  to  the  court  to  become  nonsuit. 

t  In  this  case,  the  court  said  :  "It  may  be  argued  that  as  tenants  in  common 
must  unite  in  an  action  for  the  conversion  of  their  property,  or  the  defendant 
may  defeat  the  action  l)y  taking  the  objection  in  his  pleadings,  the  release  by 
one  of  the  plaintiffs  will  of  necessity  defeat  any  action,  as  his  release  will  estop 
him.     Let   us   advert  to   some   principles   well   settled,  relating   to  tenants  in 


5CG  WHO    MAY   MAINTAIN   THE  ACTION.  §  558. 

other  liancl,  in  Maine,  the  release  of  a  trespasser  by  a  tenant 
in  common  is  said  to  discharge  the  action  as  to  his  cotenauts 
as  well  as  himself.  Bradley  v.  Boynton/  in  which  the  latter 
position  was  taken,  was  an  action  of  trover  brought  to 
recover  the  value  of  certain  mill  logs  cut  and  carried  away 
by  one  Grant  as  a  trespasser,  and  by  him  delivered  to  the 
defendants  in  payment  of  advances  made  to  him.  The 
plaintiff  and  one  Chase  being  at  that  time  mortgagees  and 
tenants  in  common,  a  settlement  for  the  trespass  was  after- 
ward made  with  Grant  by  Chase  who  released  him  from  all 
liability  as  well  for  himself  as  for  his  cotenants.  The 
question  raised  and  decided  in  the  affirmative,  was  whether 
the  settlement  and  release  of  one  tenant  in  common  bound 
his  cotenant  and  transferred  the  j)rop6rty  to  the  trespasser. 
The  reasoning  of  the  court  was  as  follows :  "  A  settlement 
and  release  of  a  trespass  necessarily  operates  as  a  transfer 
of  the  property  to  the  trespasser.     And  when  a  release  of 

common  of  personal  property.  One  tenant  in  common  has  no  authority  to 
dispose  of  the  property,  so  as  to  divest  the  title  of  his  cotenant.  If  he  cannot 
sell  the  property  and  make  a  good  title  to  the  vendee,  what  authority  can  he 
have  to  release  to  a  -wrongdoer  the  cause  of  action  which  belongs  to  the  tenants 
in  common,  and  which  would  not  survive  to  him  alone  ?  What  right  has  he  to 
settle  the  action,  and  thus  deprive  his  cotenant  of  any  remedy  ?  If  he  settles  the 
action,  and  gives  a  release  for  a  valuable  consideration,  this  would  be  equivalent  to 
a  sale  of  the  property,  and  he  has  no  power  to  sell  his  cotenant's  share.  It  may 
be  said  that  a  cotenant  may  defeat  the  action  by  refusing  to  become  a  party  to  it. 
I  apprehend  that  this  is  not  so.  If  he  should  refuse  to  unite  in  the  action,  the 
law  would,  I  think,  afford  redress  to  the  other  cotenant.  I  will  not  stop  to 
inquire  in  what  manner  this  could  have  been  done  prior  to  the  code.  Now,  if 
the  consent  of  any  one  who  should  join  in  the  action,  cannot  be  obtained,  he 
may  be  made  a  defendant,  the  reason  thereof  being  stated  in  the  complaint. 
In  the  present  case,  the  plaintiffs  had  united  in  the  action;  and  in  my  opinion, 
one  of  them  could  not  release,  discharge,  or  settle  the  action,  so  as  to  defeat  the 
right  of  the  other  to  proceed  and  recover  his  portion  of  the  damages.  He 
could  settle  for  his  portion  of  the  damages;  but  he  could  no  more  settle  for  the 
portion  of  his  cotenant,  than  he  could  sell  the  share  of  his  cotenant.  *  *  * 
If  the  trespasser  may  settle  with  one  of  the  tenants  in  common,  before  action, 
for  his  damages,  without  affecting  the  right  of  the  other  cotenants  to  sue,  I 
can  see  no  reason  why  they  may  not  settle  with  one  of  the  tenants,  after  the 
action  is  brought,  without  affecting  the  right  of  the  othor  cotenants  to  proceed  in 
the  action.  And  as  a  tenant  in  common  has  no  right  to  sell  the  entire  property,  he 
has,  in  my  opinion,  no  right  to  release  the  entire  cause  of  action.  It  does  not 
belong  to  that  class  of  cases  where  one  of  the  joint  obligees,  promisees  cove- 
nantees, may  accept  jjerformance,  and  give  an  acquittance  "  (referring  to  Baker 
V.  Jewell,  6  Mass.  460). 

The  settlement  with  one  of  two  partners  who  are  jointly  liable  for  taking 
personal  property,  for  one  half  of  the  property  taken,  will  not  prevent  a  recovery 
of  the  other  half  (McCallis  v.  Hawes,  38  Maine,  566). 

'  23  Maine,  287. 


§  559.        POSSESSION   OF    GOODS    OBTAINED    BY  FRAUD.  567 

one  tenant  in  common  discharges  tLe  cause  of  action,  it 
must  have  a  like  effect.  The  plaintiff  would  avoid  this 
result  by  showing  that  the  mill  logs,  after  they  were  cut, 
became  the  property  of  the  plaintiff  and  of  Chase  ;  that  one 
tenant  in  common  of  personal  property  can  sell  his  own 
share  only,  and  that  the  settlement  and  release  of  Chase 
was  an  attempt  to  sell  the  whole  property  ;  and  that  it  could 
not  therefore  destroy  the  right  of  property  in  the  plaintiff. 
These  positions  are  correct  so  long  as  the  common  property 
exists  unaffected  by  the  illegal  acts  of  others,  and  subject  to 
the  possession  of  the  tenants  in  common.  But  when  they 
have  been  deprived  of  the  possession  and  enjoyment  of  it  by 
a  wrong-doer,  their  right  to  compensation  for  that  injury  is  a 
joint  one ;  and  their  remedy  is  by  a  joint  action.  And 
hence  it  is,  that  one  of  them  may  release  and  discharge  both 
the  joint  right  of  action  and  the  action  itself." 

12.    Where  possession  of  goods  is  obtained  by  fraud. 

§  559.  If  a  person  obtain  goods  by  a  sale  which  is  void 
in  respect  to  himself,  and  transfer  them  to  a  bona  fide  pur- 
chaser without  notice,  the  owner  cannot  maintain  trespass 
for  them.-^  When  goods  are  unlawfully  sold  and  delivered 
by  an  officer  to  a  purchaser,  the  weight  of  authority  is,  that 
trespass  cannot  be  maintained  against  the  purchaser,  unless 
the  goods  have  come  to  his  possession,  in  part  at  least, 
through  his  own  fault.^  *     The  reason  of  this  is  not  that  the 

'  Mowrey  v.  Walsh,  8  Cowen,  238;  Parker  v.  Patrick,  5  Term  R.  175;  Ladd 
V.  Blunt,  4  Mass.  402;  Hunter  v.  Perry,  33  Maine,  159. 

'  Bacon's  Abr.  E,  2;  Wilson  v.  Barker,  4  B.  &  Ad.  614;  Fiero  v.  Betts,  2 
Barb.  633;  Justice  v.  Mendell,  14  B.  Mon.  12. 

*  In  Cooper  et  al.  Assignees  of  Johns  v.  Chitty,  1  Burr.  32,  it  was  considered 
an  admitted  point  tliat  the  innocent  vendee  of  goods  wrongfully  seized  by  the 
sherill  could  have  no  title  under  the  sale,  but  that  he  is  liable  to  an  action.  And 
in  Balme  et  al.  v.  Ilutton  et  al.  <J  Bing.  471  (23  Eng.  C.  L.  338),  Tiudal,  C.  J., 
said  :  "  Servants  of  the  bankru])t,  judgment  creditors  who  set  the  law  in  motion, 
vendees  at  the  sheriff's  sale,  and  all  other  jiersons  who  assist  in  selling,  dispos- 
ing, or  removing  the  goods  of  a  bankrupt,  would  confessedly  be  held  guilty  of  a 
wrongful  taking." 

lie  who  assumes  to  deal  or  intermeddle  with  personal  property  which  is  not 
his  own,  must  see  to  it  that  he  has  a  warrant  therefor  from  some  one  who  is 
tiuthorized  to  give  it.     If   he   buys   from,  or  consents  to  act  by  the  direction  of 


568  WHO    MAT   MAINTAIN   THE   ACTION.  §  559. 

owner's  riglit  to  immediate  possession  is  defective,  but  be- 
cause the  purchaser's  taking  is  held  not  to  be  unlawful. 
Nor  is  this  doctrine  peculiarly  applicable  to  the  case  of  an 
illegal  seizure  by  an  officer.  If  one  -who  is  not  an  officer  tor- 
tiously  seize  my  goods,  and  afterward  deliver  them  to  another 
not  a  party  to  the  original  wrong,  I  cannot  maintain  tresj)ass 
against  that  other,  though  I  have  a  right  to  their  present  en- 
joyment, and  may  recapture  them.  But  we  have  seen  ^  that 
when  possession  has  been  acquired  by  trespass  upon  the  first 
trespasser,  the  second  taker  is  responsible  to  the  owner  in 
trespass.'^  It  is  laid  down  by  an  old  authority  that,  "  If  I 
bail  goods  to  a  man,  who  gives  or  sells  them  to  a  stranger, 
and  the  stranger  takes  them  without  delivery,  I  shall  have 
trespass  ;  for,  by  the  gift  or  sale,  the  property  is  not  changed, 
but  by  the  taking.  But  if  the  bailee  delivers  them  to  the 
stranger.  I  shall  not  have  trespass."  ^  Again,  it  is  said  that 
if  an  infant  give  or  sell  his  goods  and  deliver  them  with  his 
own  hands,  the  act  is  voidable  only.  But  if  he  give  or  sell 
goods,  and  the  donee  or  vendee  take  them  by  force  of  the 
gift  or  sale,  the  act  is  void,  and  the  infant  may  bring  tres- 
pass.'* And  where  a  sheriff  sold  on  execution  goods  belong- 
ing to  a  third  person,  and  the  purchaser  did  not  immediately 
take  them,  it  was  held,  that  he  acquired  no  possession  as 
against  the  owner.^  *     Upon  proof  of  the  original  tortious 

another,  he  must  see  to  it  that  in  the  responsibility  of  such  other,  he  can  find 
indemnity  if  his  confidence  is  misplaced  (Sjiraights  v.  Hawley,  39N.  Y.  441 ;  An- 
derson V.  Nicholas,  5  Bosw.  121,  and  cases  cited). 

At  common  law,  the  right  of  property  in  things  sold  is  changed  permanently 
by  a  sale  in  market  overt;  so  that  whoever  buys  goods  and  chattels  in  the  open, 
public,  legally  constituted  market,  acquires  an  indefeasible  title  to  the  chattels 
so  purchased,  unless  he  buys  with  knowledge  of  an  infirmity  of  title  on  the  part 
of  his  vendor  (2  Elk.  Com.  449;  Crane  v.  London  Dock  Co.  33  L.  J.  Q.  B.  224). 
But  one  who  buys  goods  by  private  contract,  and  not  by  public  sale  in  market 
overt,  acquires  no  better  title  than  that  possessed  by  his  immediate  vendor. 

'  Ante,  §  425. 

-  Acker  v.  Campbell,  23  Wend.  372;  Talmadge  v.  Scudder,  38  Penn.  St.  R. 
517;  Marshall  v.  Davis,  1  Wend.  109;  Nash  v.  Mosher,  19  Wend.  431. 

''  Viner's  Abr.  Trespass,  M,  PI.  11,  12. 

'l^oof  V.  Stafford,  7  Cowen,  179;  Fonda  v.  Van  Home,  15  Wend.  631;  Ely 
V.  Ehle,  3  N.  Y.  506. 

'  Austin  V.  Tiiden,  14  Vt.  325. 

*  In  Storm  v.   Livingston,    6   Johns.   44,  it  was  proved  that  a  constable  had 


§  559.        POSSESSION    OF    GOODS    OBTAINED    BY   FRAUD.  5G9 

taking,  it  lies  on  the  purchaser  or  bailee  in  order  to  protect 
himself  from  liability  as  a  trespasser,  to  show  that  he  came 
to  the  possession  of  the  property  for  a  lawful  purpose,  and  in 
perfect  good  faith,  by  delivery  from  the  wrong-doer.     That 


tortionsly  taken  the  plaintiif 's  horse  and  sold  it  at  auction  to  the  defendant,  who 
kept  it.  It  was  held,  that  trover  would  not  lie  until  demand  and  refusal,  because 
the  defendant  came  lavv'fully  by  the  horse.  The  decision  involved  a  denial  that 
trespass  would  lie,  for  a  taking  which  warrants  an  action  of  trespass  is  neces- 
sarily a  conversion  (see  Talmadge  v.  Scudder.  38  Penn.  St.  R.  517).  The  follow- 
ing cases  of  trover  are  in  point:  In  Hurst  v.  Gwennap,  2  Stark.  306,  the  assignees 
of  a  bankrupt  sustained  an  action  of  trover  without  a  previous  demand  for  goods 
sold  to  tiie  defendant  by  the  bankrupt  after  a  secret  act  of  bankruptcy  of  which 
the  defendant  had  no  knowledge.  Lord  EUeiborough  said:  "  The  very  act  of 
taking  the  goods  from  one  wdio  had  no  right  to  disi)Ose  of  them  was  in  itself  a 
conversion."  And  this  was  confirmed  by  the  whole  Court  of  King's  Bench  (s. 
p.  Soames  v.  Watts,  1  Car.  &  P.  400;  Yates  v.  Carnsew,  3  Car.  &  P.  101).  In 
Hyde  v.  Noble,  13  New  Hamp.  494,  it  was  decided  that  the  taking  of  chattels, 
claiming  them  under  a  sale  l)y  one  who  had  no  power  to  sell,  was  a  conversion, 
and  rendered  the  buyer  liable  to  the  owner  in  an  action  of  trover  without  a  pre- 
vious demand.  The  following  cases  of  replevin  are  equally  in  point:  In  Parsons 
V.  Webb,  8  Greenl.  38,  A.  delivered  his  horse  to  B.,  to  be  sold  for  A.'s  benefit. 
B.  sold  the  horse  to  C,  his  creditor,  in  payment  of  his  debt,  and  C.  sold  the 
horse  to  D.  It  was  decided,  that  A.  might  maintain  an  action  of  replevin 
against  D.  without  first  demanding  the  horse.  So,  in  Galvin  v.  Bacon,  2  Fairf. 
28,  where  A.,  the  bailee  of  a  horse,  sold  him  to  B.,  and  B.  sold  him  to  C, 
neither  B.  nor  C.  having  any  notice  that  the  horse  was  not  the  property  of 
A.,  the  bailor  maintained  an  action  of  replevin  against  C.  without  a  previous 
demand.  In  all  these  cases,  in  which  trover  or  replevin  was  held  to  be  well 
brought,  trespass  might  have  been  sustained,  according  to  the  well  established 
law  of  actions. 

In  Marshall  v.  Davis,  1  Wend.  109,  it  was  held,  upon  the  authority  of 
Bacou's  Abr.  Trespass,  C,  that  replevin  could  not  be  maintained  by  a  bailor 
against  one  who  buys  goods  of  a  bailee  who  has  no  authority  to  sell  them. 
Savage,  C.  J.,  stated  the  ground  of  that  decision  to  be,  that  there  was,  technic- 
ally, no  taking  of  the  property  to  subject  the  defendant  to  the  action  of  trespass, 
he  having  obtained  possession  by  delivery  from  a  person  having  a  special  prop- 
erty therein;  and  that  the  pro|)er  remedy  was  detinue,  or  trover.  And  see  to 
the  same  effect  Barrett  v.  Warren,  3  Hill,  348;  Pierce  v.  Van  Dyke,  6  Hill,  G13; 
Nash  V,  Mosher,  19  Wend.  431. 

"Whoever,"  said  Weston,  J.,  in  Galvin  v.  Bacon,  2  Fairf.  30,  "takes  the 
property  of  another  without  his  assent,  express  or  implied,  or  without  the  assent 
of  some  one  authorized  to  act  in  his  behalf,  takes  it,  in  the  eye  of  the  law,  tor- 
tionsly. His  possession  is  not  lawful  against  the  true  owner.  That  is  unlawful 
which  is  not  justified  or  warranted  by  law  ;  and  of  this  character  may  be  some 
acts  which  are  not  attended  with  any  mortal  turpitude.  A  party  honestly  and 
fairly,  and  for  a  valuable  consideration,  l)uys  goods  of  one  who  had  stolen  them. 
He  acquires  no  rights  under  his  purchase.  The  guilty  party  had  no  riglitful  pos- 
session against  the  true  owner,  and  he  could  convey  none  to  another.  The 
purchaser  is  not  liable  to  be  charged  criminally,  because  innocent  of  any  in- 
tentional wrong,  but  the  owner  may  avail  himself  against  him  of  all  civil 
remedies  provided  by  law  for  the  protection  of  property.  If  the  bailee  of 
property  for  a  special  [jurpose  sells  it  without  right,  the  purcliaser  does  not 
thereby  acquire  a  lawful  title  or  possession.  In  the  case  before  us,  the  de- 
fendant came  honestly  by  the  horse,  but  he  did  not  receive  possession  of  him 
from  any  one  authorized  to  give  it,  and  is  therefore  liable  ckiliter  to  the  true 
owi\er  for  the  taking  as  well  as  for  the  detention." 


570  WHO    MAY  MAINTAIN  THE   ACTION.  §  560. 

being  proved,  and  that  he  was  guilty  of  no  fault,  he  would 
be  protected  against  liability  as  a  tortious  taker  of  the  prop- 
erty, although,  even  in  that  case,  he  woidd  be  answerable  to 
the  owner  for  the  property  after  demand  and  refusal  to  de- 
liver it,  for  he  would  not  acquire  any  title  to  the  property  by 
his  purchase.^  *  But  the  owner  of  goods  wrongfully  taken 
after  releasing  the  trespasser,  cannot  sue  the  vendee  of  the 
trespasser.^ 

§  560.  AVhen  a  sale '  has  been  procured  by  fraud,  the 
vendor  still  retains  his  legal  right  in  the  goods,  unless,  after 
discovering  the  fraud,  he  assent  to  and  ratify  the  act  of  sale 
positively,  or  by  such  delay  in  reclaiming  the  goods  as  would 
authorize  a  jury  to  infer  assent.^  This  rule  applies  w^hen  the 
original  taking  of  the  goods  was  by  permission  of  the  owner, 
who  was  led  to  give  the  permission  by  such  a  fraudulent 
deceit  on  the  part  of  the  purchaser  as  avoids  the  sale  if  the 
seller  chooses  to  avoid  it.^  It  has  been  held,  that  one  who 
acquires  possession  of  goods  under  a  bill  of  sale  given  as 
secuiity  for  a  contract  which  at  the  time  he  intended  not  to 
fulfil,  is  as  much  a  trespasser  as  though  the  bill  of  sale  had 
never  passed.^  f 


'  Tallmaa  v.  Turck,  26  Barb.  167;  Ely  v.  Ehle,  3  N.  Y.  506. 

^  Woolsey  v.  Seely,  Wright,  360. 

'  Ash  V.  Putnam,  1  Hill,  302;  Root  v.  French,  13  Wend.  570. 

*  Tallman  v.  Turck,  supra. 

'  Butler  V.  Collins,  12  Cal.  457;  M'Carty  v.  Vickery,  12  Johns.  348,  contra. 

*  Symonds  v.  Hall,  37  Maine,  354,  was  an  action  of  trespass  de  honis  asportatis 
for  a  quantity  of  hay.  It  appeared  that  the  plaintiff  had  leased  his  farm  to  one 
Foster  to  be  cultivated  on  shares;  that,  after  the  hay  had  been  divided  on  the 
farm,  it  was  taken  by  Hall,  one  of  tlie  defendants,  on  an  execution  against  Fos- 
ter, and  that  Morrill,  the  other  defendant,  bought  the  hay  at  sheriff's  sale.  The 
court,  ])er  Howard,  J.,  in  holding  that  the  plaintiff  was  entitled  to  recover,  said: 
"In  taking  and  selling  the  hay  of  the  plaintiff  on  an  execution  against  Foster 
after  the  division  had  been  eflected,  the  defendant  Hall  was  a  trespasser ;  and 
Morrill,  the  other  defendant,  by  purchasing  that  portion  of  the  hay  and  remov- 
ing it,  with  the  assistance  of  the  officer,  became  a  joint  trespasser;  and  both  will 
be  held  responsible  to  the  plaintiff  for  the  damages  accruing  to  him  from  that 
sale  of  his  hay.  The  officer  Hall  is  also  accountable  in  like  manner  for  taking, 
selling,  and  delivering  to  others  the  remaining  portion  of  the  plaintiff's  hay,  in 
which  Morrill  did  not  participate,  and  for  which  he  is  not  accountable  upon  the 
pleadings  and  proof.  The  plaintiff  is  entitled  to  judgment  against  both  defend- 
ants for  the  joint  trespass,  but  not  for  the  several  trespass  of  Hall.  Or  he  may 
discontinue  as  to  Morrill,  and  lake  judgment  against  Hall  for  both  trespasses." 

t  In  M'Carty  v.  Vickery,  supra.  Vickery  brought  an  action  against  M'Carty 


§  561.        POSSESSION    OF    GOODS    OBTAINED   BY  FRAUD.  571 

§  561.  To  render  a  sale  of  property  void  as  to  creditors, 
both  tlie  vendor  and  vendee  must  participate  in  the  intent 
to  delay  the  creditors  of  the  vendor,  at  least  to  the  extent  of 
the  vendee's  having  knowledge  of  such  intent  on  the  part  of 
the  vendor.^  The  old  cases,  before  the  statute  of  frauds,^ 
have  said,  that  if  a  man,  after  judgment,  and  to  defraud  exe- 
cution, sell  his  goods  for  a  valuable  consideration,  and  the 
buyer  knew  of  the  judgment,  the  sale  is  void.^  But  the 
modern  doctrine  is  not  merely  that  the  purchaser  must  know 
of  the  judgment.  That  fact  will  not,  of  itself,  defeat  a  ho7ia 
jide  sale,  or  make  it  fraudulent  in  law.'^     The  rule  is,  that 

in  the  court  below  for  cutting  and  carrying  away  wood,  to  which  the  de- 
fendant pleaded  the  general  issue.  On  the  trial  it  was  prov^ed  that  one  Fake 
purchased  the  wood  of  the  plaint'ff  on  credit,  and  that  M'Carty  went  his  se- 
curity; that  the  wood  was  delivered  to  Fake,  and  M'Carty  took  it  away 
although  forbidden  by  tlie  plaintiff,  who  charged  that  a  fraud  had  been  prac- 
ticed on  him,  and  that  M'Carty  was  a  party  to  the  fraud.  Fake  and  M'Carty 
were  both  supposed  to  I>e  insolvent.  The  Supreme  Court,  in  reversing  the  judg- 
ment, which  was  for  the  plaintiff,  said:  "Although  it  is  pretty  evident  that 
the  plaintiff  below  was  deceived  in  the  sale  of  his  wood  to  Fake,  yet  there 
is  no  principle  upon  which  an  action  of  trespass  can  be  sustained  against  the 
defendant.  The  wood  had  actually  been  delivered  to  Fake.  The  plaintiff  was, 
therefore,  divested  of  the  possession  which  is  necessary  to  the  support  of  an 
action  of  trespass.  Had  not  the  plaintiff  parted  with  the  jDossession,  the  insolv- 
ency of  the  purchaser  might  have  justified  a  refusal  to  deliver.  But  by  the 
delivery,  the  property  was  changed,  and  trespass  could  not  be  maintained." 

In  an  action  of  trespass  for  wrongfully  seizing  goods  under  execution,  a  plea 
is  good  which  avers  that  the  defendant,  as  agent  of  the  plaintiffs  in  the  execu- 
tion, directed  the  marshal  to  levy  on  goods  in  the  hands  of  another  than  the 
defendant,  because  they  had  been  fraudulently  sold  to  him  by  the  defendant 
(McNall  V.  Vehon,  32  111.  499). 

"  Leach  v.  Francis,  41  Vt.  670 ;  Eowley  v.  Bigelow,  12  Pick.  307. 

=  29  Car.  II,  c.  3.  =  Under  the  13  Eliz. 

*  In  New  York,  in  an  action  brought  to  recover  the  value  of  certain  goods, 
which,  it  was  alleged,  had  been  forcibly  and  wrongfully  taken  from  the  plaint- 
iff's possession,  the  question  was  whether  the  defendant,  as  sheriff,  could  right- 
fully seize  the  goods  in  question,  and  take  them  from  the  possession  of  tlie 
plaintiff,  by  virtue  of  attachments  issued  by  a  justice  of  the  Supreme  Court,  in 
actions  in  that  court  against  A.  and  B.,  on  the  ground  that  they,  with  the  intent 
to  hinder,  delay  and  defraud  their  creditors,  assigned  the  goods  in  question  to 
C,  who  took  them  with  the  like  intent,  and  transferred  the  same  to  the  plaint- 
iff, with  notice  of  the  fraud.  It  was  held  that  the  attachments  authorized  the 
sheriff  to  seize  any  property  the  defendants  named  in  them  had  disposed  of,  in 
any  manner,  with  intent  to  defraud  their  creditors;  that  the  persons  wlio  pro- 
cured the  attachments  were  not  to  be  deemed  mere  creditors  at  large  of  A.  and 
B.,  after  their  attachments  were  serveil,  but  creditors  having  a  specific  lien  upon 
the  goods  attached;  and  that  the  sheriff,  as  their  bailee,  had  a  like  lien,  and  had 
a  right  to  show  that  the  plaintiffs  title  was  fraudulent  as  against  the  attaching 
creditors  (Uinchey  v.  Stryker,  28  N.  Y.  R.  45).  The  court  said:  "The  fact 
that  an  attachment  is  issued,  in  a  case  like  this,  before  the  debt  is  conclusively 
established  on  which  it  is  founded,  and  that  it  may  subsequently  be  shown  by 


572  WHO    MAY    IMAIKTAIN   THE   ACTION.  §  561. 

tlie  pnrcbaser,  knowing  of  the  judgment,  must  purchase, 
with  the  view  and  purpose  to  defeat  the  creditor's  execu- 

tbe  defendant  in  the  attachment,  that  there  was  no  such  debt,  is  not  a  sufficient 
reason  for  holding  that  the  attaching  creditor  canuot  show  that  the  property 
attached  is,  in  fact,  the  debtor's,  when  sued  for  it  by  a  third  person  who  claims 
it  by  a  title  which  is  fraudulent  as  against  the  attaching  creditor.  Such  third 
person  may  prove  that  no  such  debt  existed,  until  it  is  established  by  a  judgment 
in  the  attachment  suit.  He  may,  therefore,  defeat  the  attaching  creditor  on. 
either  of  two  grounds:  1st.  That  there  was  no  debt  to  justify  the  issuing  of  the 
attachment;  2d.  That  he  had  a  good  title  to  the  property  in  dispute  when  it 
was  attached.  Of  course,  the  creditor  or  officer  must  first  prove  the  existence  of 
the  debt  for  which  the  attachment  was  issued,  when  such  debt  has  not  been 
established  by  a  judgment  against  the  debtor.  When  that  is  done,  the  judg- 
ment proves  it.  It  certainly  is  not  an  insuperable  objection  to  permitting  all  of 
this  to  be  done,  simply  because  it  authorizes  the  trial  of  two  different  issues  in  the 
same  action.  Indeed,  two  different  issues  must  be  tried  in  the  action,  if  formed 
by  the  pleadings,  though  the  creditor  has  previously  recovered  a  judgment  against 
his  debtor,  and  is  able  by  it  to  establish  conclusively  the  existence  of  his  debt. 
When  the  creditor  has  no  such  judgment,  the  party  claiming  that  the  property 
did  not  belong  to  the  debtor  when  it  was  seized,  has  two  chances  of  success. 
But  when  the  creditor  has  obtained  such  a  judgment,  he  has  but  one.  In  other 
words,  the  conclusiveness  of  the  judgment,  in  effect,  narrows  the  litigation 
down  to  a  single  issue.  It  has  been  said,  that,  although  the  creditor  may  be 
able  to  show,  when  sued  for  the  property  attached,  that  a  debt  was  justly  due 
him,  for  which  the  attachment  was  issued,  and  yet  be  defeated  in  his  action  for 
the  recovery  of  the  alleged  del)t.  It  may  also  be  said,  that  he  might  be  beaten 
in  the  first  action,  by  failing  to  prove  his  alleged  debt,  and  succeed  in  establish- 
ing it  in  the  second.  But  this  reasoning  is  no  answer  to  the  fact  that  tlie  Code 
authorizes  an  attiichment  whenever  the  debtor  has  disposed  of  any  of  his  prop- 
erty, with  the  intent  to  defraud  his  creditors.  And  it  is  right  on  principle,  if 
not  settled  by  authority,  that  creditors  should  be  permitted  to  attach  the  prop- 
erty of  their  debtors,  before  conclusively  establishing  their  debts  by  judgment, 
?nd  thus  prevent  the  consummation  of  fraudulent  transactions  which  would  de- 
prive them  of  any  successful  remedy.  And  if,  by  the  application  of  this  rule, 
fraudulent  purchasers  should  occasionally  be  beaten  by  persons  who  subse- 
quently fail  to  establish  their  alleged  debts  in  their  actions  against  their  debtors, 
the  only  result  would  be  that  some  concoctors  of  frauds  would  be  punished  by 
the  wrong  persons.  That  is  all.  A  like  result  would  follow  where  the  creditor 
recovers  a  judgment  against  his  debtor,  and  takes  property  on  execution,  which 
the  latter  has  fraudulently  disposed  of,  if  such  judgment  should  subsequently  be 
reversed,  and  the  creditor  finally  beaten  by  his  alleged  debtor  after  having 
beaten  the  fraudulent  purchaser  of  the  property  in  the  action  brought  by  such 
purchaser  for  the  property.  But  this  has  never  been  deemed  a  sufficient  reason 
for  preventing  creditors  from  seizing  the  property  of  their  debtors  in  the  hands 
of  fraudulent  purchasers,  until  after  the  existence  of  their  debts  has  been  con- 
clusively and  finally  established.  The  fact  that  the  judgments  against  A.  and 
B.  were  recovered  after  the  issues  in  this  action  were  joined,  was  no  reason  for 
their  rejection.  Their  recovery  was  not  a  matter  that  the  defendant  was  obliged 
to  set  up  in  his  answer.  They  were  but  evidence,  though  conclusive,  of  the 
existence  of  the  debts  for  which  the  attachments  were  issued — which  evidence 
the  defendant  did  not  have,  at  the  time  he  interposed  his  answer,  to  support  it. 
If  they  had  not  been  i-ecovered,  all  the  difference  there  would  have  been  is,  the 
defendant  would  have  been  obliged  to  prove  the  existence  of  the  debts  against 
A.  and  B.  by  other  and  different  evidence,  and  the  plaintiff  could  have  given 
counter  evidence  on  that  question  "  (s.  c.  31  N.  Y.  140). 

It  has  been  held,  in  New  York,  that  whenever  one  purchases  property,  with 
intent  to  defraud  the  creditors  of  the  vendor,  he  takes  it  su!)ject  to  the  statute 
authorizing  the  property  of  his  vendor  to  be  seized  upon  an  attachment  issued. 


§  561.        POSSESSION    OF    GOODS    OBTAINED   BY   FRAUD.  573 

tion  ;  and  if  lie  does  it  witli  that  purpose,  it  is  iniquitous 
and  fraudulent,  notwithstanding  he  may  give  a  full  price. 
The  question  of  fraud  depends  upon  the  motive.  The  pur- 
chase must  be  bona  fide^  as  well  as  upon  good  considera- 
tion. This  was  the  rule,  as  declared  by  Lord  Mansfield 
upon  repeated  occasions.* 

in  an  action  against  his  vendor ;  and  if  the  property  purchased  be  taken  upon 
such  attachment,  he  cannot,  in  an  action  against  the  sheriff,  dispute  the  facts 
proved  by  the  aifidavits  upon  wliich  the  attachment  was  issued,  but  such  facts 
are  as  conclusive  agrainst  him  in  the  action  brought  by  him.  as  they  would  be  in 
an  action  brought  by  the  defendant  {\\\?,  vendor)  against  the  sheriff.  Such  facts 
are  as  conclusive,  in'the  action  against  the  sheriff,  to  establish  the  relations  be- 
tween the  plaiutiff  and  defendant  in  the  action  in  which  the  attachment  is 
issued,  as  a  judgment  is  in  establishing  the  relation  of  creditor  and  debtor  be- 
tween the  parties  to  the  record.  One  who  purchases  property,  with  intent  to 
defraud  the  creditors  of  his  vendor,  cannot  complain  that  it  is  taken  on  attach- 
ment under  a  special  statute  requiring  certain  facts  to  be  proved,  and  held  until 
his  vendor,  if  he  sees  tit,  makes  defense  against  the  claim  and  defeats  the  action. 
The  vendee  has  no  right  to  appear  in  such  action  and  make  defense,  nor  can  he 
compel  his  vendor  to  do  so;  and,  in  the  absence  of  collusion  or  fraud,  he  will, 
as  to  the  question  of  creditor  and  debtor,  l)e  bound  by  their  acts,  and  the  judg- 
ment rendered  between  them.  If  he  is  an  honest  purchaser,  then  he  will  recover, 
whatever  may  have  been  the  relations  between  his  vendor  and  the  party  suing 
him,  and  the' question  oilowi  fides  in  the  purchase  may  be  tried  in  his  action 
against  the  sheriff  (Hall  v.  Stryker,  27  N.  Y.  R.  596,  per  Marvin,  J.)  (In  the 
foregoing  case,  Balcom,  Seldeu  and  Rosekrans,  JJ.,  were  of  the  opinion,  that 
whether  or  not  the  plaintiff  in  the  attachment  was  a  creditor,  was  an  open  ques- 
tion until  he  had  obtained  judgment:  s.  c.  39  Barb.  105;  s.  p.  Bentley  v.  Good- 
win, 15  Al)b.  Pr.  R.  82). 

In  Falconer  v.  Freeman,  4  Sandf.  Ch.  R.  565,  it  was  held,  that  a  creditor 
who  takes  out  a  warrant  of  attachment,  under  the  act  of  New  York  relative  to 
absent  and  concealed  debtors,  thereby  obtains  a  lien  upon  the  property  of  the 
debtor  proceeded  against;  and  if  the  sheriff  be  prevented  from  levying  the  war- 
rant on  the  del)tor's  property,  by  means  of  fraudulent  claims  or  transfers,  set  up 
in  respect  of  the  same,  the  Court  of  Chancery  would  aid  the  creditor  in  en- 
forcing the  lien  by  injunction  and  otherwise,  on  the  same  principle  that  the 
court  aids  an  execution  creditor  similarly  obstructed. 

*  Boyd  v.  Brown,  17  Pick.  453,  was  an  action  of  trespass  against  a  deputy 
sheriff,  for  taking  and  carrying  away  the  plaintiff's  vessel.  The  defendant  jus- 
tified, under  a  writ  of  attachment,  against  one  Averill.  It  appeared  that  the 
plaintiff  had  previously  sold  three-fourths  of  the  vessel  to  Averill,  and  al'terv/ards 
bouglit  it  back.  It  was  proved  that,  before  this  purchase,  Averill,  being  in  em- 
barrassed circumstances,  had  given  a  bill  of  sale  of  his  share  in  the  vessel  to 
one  Caldv/ell,  without  consideration,  for  the  purpose  of  preventing  its  being  at- 
tached by  his  creditors;  and  when  the  plaintiff'  agreed  to  purchase,  he  took  a 
\n\\  of  sale  from  Caldwell,  and  not  directly  from  Averill.  It  was  held  that,  after 
the  conveyance  from  Caldwell  to  the  plaintiff,  it  was  too  late  for  the  creditors  of 
Averill  toavcid  the  conveyance  from  him  to  Caldwell;  that  the  payment  of  a 
full  consideration  to  Averill  confirmed  the  plaintiff's  title,  and  purged  the  fraud 
in  the  original  conveyance;  that  the  plaiutiff,  therefore,  stood  on  as  good  a  foot- 
ing as  he  would  have  stood  on  if  he  had  purchased  of  CJaldwell  lona  Jide  and 
without  knowledge  of  the  fraud.  In  the  foregoing  cuse,  it  was  proved  that  the 
plaintiff,  in  payment  for  the  schooner,  agreed  to  indorse  a  certain  sum  on  his 
note  against  Averill,  but  it  was  not  then  done.  It  was  held  that  if  the  indorse- 
ment was  not  made  until  after  the  defendant's  attachment,  the  delay  would  not 


574  WHO    MAY  MAIISTAIN   THE  ACTION.  §  562. 

§  562.  The  continued  possession  of  goods  by  a  vendor  or 
debtor,  wlio  is  in  embarrassed  circumstances,  yields  a  pre- 
sumption that  the  process  or  sale  is  rather  colorable  than 
real.  For,  in  general,  no  reason  can  be  given  why  possession 
should  not  be  taken,  except  that  he  should  be  indulged  with 
the  disposition  or  use  of  the  property  to  the  injury  of  others. 
And  proof  of  the  payment  of  a  full  consideration,  or  of  the 
justice  of  the  debt  for  which  property  is  taken,  accompanied 
with  the  highest  evidence  of  the  honesty  of  the  transaction, 
will  not,  in  general,  be  sufficient  to  repel  the  legal  effect  of 
neglecting  an  actual  removal  of  the  property,"^  The  means 
of  proving  a  bona  fide  debt,  or  the  payment  of  an  adequate 
consideration,  are  so  far  within  the  power  of  the  parties, 
where  no  debt  or  consideration  actually  exists  ;  the  difficulty 
of  repelling  that  testimony  by  the  creditor  is  so  insurmount- 


nec'essarily  vitiate  the  sale,  but  that  it  was  a  circumstance  for  the  jury  to  con- 
sider in  connection  with  the  other  evidence,  in  determining  whetlier  or  not  the 
sale  was  fraudulent. 

*  The  rule  with  regard  to  the  necessity  of  a  change  of  possession,  in  order  to 
exempt  property  sold  or  assigned  from  attachment,  prevailed  generally  in  the 
United  States  for  many  years.  But,  after  the  alteration  of  the  rule  in  England, 
it  was  gradually  modified  in  this  country,  until  it  is  now  customary,  in  many  and 
probably  most  of  the  States,  to  regard  the  want  of  change  of  possession  before 
the  attachment  as  only  presumptive  evidence  of  fraud  (see  Rice  v.  Courtis,  32  Vt. 
460). 

In  Vermont,  the  rule  requiring  a  change  of  possession  to  protect  property 
from  subsequent  attachment,  is  peremptory  and  universal  in  its  application  to  all 
property  in  the  possession  of  the  debtor  at  the  time  of  the  attachment  or  transfer. 
But  a  distinction  has  been  made  between  property  in  the  hands  of  the  debtor, 
and  property  in  the  hands  of  a  third  person  at  the  time  of  the  attachment. 
Where  the  chattels  sold  or  attached  are  in  the  hands  of  a  third  person,  no  visil)le 
change  of  possession  is  required,  provided  the  vendee  or  creditor  gives  notice  to 
such  third  person  of  his  purchase  or  attachment.  This  decision  was  first  made 
inBarnev  v.  Brown  (3  Vt.  374j,  and  has  been  repcatedlv  reaffirmed  (3  Vt.  555;  5 
Vt.  231;'  4Vt.  464;  8Vt.  344;  16  Vt.  580;  13  Vt.  418"  and  558).  In  Pierce  v. 
Chipman  (8  Vt.  334),  the  ground  of  distinction  was  clearly  stated  by  Collamer, 
J.  Possession  of  either  real  or  personal  property  by  a  third  person  is  notice  to 
the  world  that  the  title  of  the  former  possessor  has  been  transferred ;  and  pur- 
chasers or  creditors  dealing  with  the  property  are  put  upon  inquiry,  and  are 
afiected  with  knowledge  of  all  the  facts  which,  by  reasonable  investigation,  they 
could  ascertain.  Hence,  when  the  property  is  in  the  possession  of  a  third  person, 
there  is  an  obligation  upon  a  subsequent  attaching  creditor  to  inquire  as  to  the 
ownership;  and  he  is  not  allowed  to  rest  content  with  mere  observation  (Aldis, 
J.,  in  Flanagan  v.  Wood,  33  Vt.  332). 

A  sale  of  stock  raised  and  kept  on  a  farm,  by  a  tenant,  is  void  against  his 
creditors,  if  it  is  still  kept  by  him  on  the  farm,  notwithstanding  the  owner  of 
the  farm  (who  is  not  in  the  actual  possession)  agrees  to  keep  the  property  for  the 
vendee  (Rockwood  v.  Collamer,  14  Vt.  141). 


§  562.        POSSESSION    OF    GOODS    OBTAINED  BY  FKAUD.  575 

able,  and  the  temptation,  on  the  part  of  the  owner  of  the 
property  and  his  friends,  to  protect  liim  from  the  pains  of 
penury,  is  of  such  controlling  influence,  that,  as  a  matter  of 
policy,  the  law  has  removed  the  temptation  to  fraud,  by  mak- 
ing void,  as  against  creditors,  sales  of  personal  property  and 
seizures  by  legal  process,  unless  accompanied  by  an  actual 
removal  of  the  property.  If,  when  sold,  or  taken  by  legal 
process,  it  is  actually  removed  from  the  possession  of  the 
vendor  or  debtor,  its  use  or  enjoyment  by  him  is  made  im- 
possible ;  and  attempts  to  make  feigned  sales  or  seizures  for 
that  purpose  are  rendered  abortive.  This  rule  of  municipal 
law  is  adopted,  with  more  or  less  severity,  in  most  places 
where  the  common  law  prevails,  except  in  certain  cases  where 
its  application  would  be  impossible  or  injurious.  In  the 
familiar  instance  of  the  sale  of  a  ship  at  sea,  a  delivery  can- 
not be  made  at  the  time  of  sale ;  but  is  sufiicient  if  made  as 
soon  as  may  be  after  the  return  of  the  vessel.  And  when 
property  attached  cannot  be  removed  without  great  injury, 
as  hides  in  a  vat,  or  paper  in  a  mill,  at  such  a  period  in  the 
process  of  manufacture  that  a  removal  would  cause  material 
damage  or  destruction,  it  is  dispensed  with,^  ■^"" 

'  Mills  V.  Camp,  14  Conn.  219,  and  cases  cited;  ante,  §  447. 

*  Where  a  man  buys  a  farm  with  personal  property  upon  it,  and  takes  his 
deed,  puts  it  on  record  and  enters  upon  the  premises,  though  his  family  does  not 
reside  thereon,  and  assumes  an  exclusive  control  of  the  property,  the  vendor  and 
his  family  not  living  on  the  farm,  this  is  a  sufficient  change  in  the  possession  of 
the  personal  property  to  constitute  a  valid  sale,  although  the  vendor  assisted  the 
vendee  to  thresh  some  grain  in  the  barn,  a  part  of  the  property  sold;  the  infer- 
ence being  that  he  assisted  the  vendee  as  his  hired  man  or  servant  (Wilson  v. 
Hooper,  13  Vt.  653). 

A  son,  about  leaving  the  county,  with  the  intention  to  remain,  sold  and  de- 
livered to  his  mother  a  piano.  After  a  few  weeks,  not  succeeding  abroad  as  he 
expected,  he  returned  with  his  family,  his  mother  residing  with  him,  and  the 
piano  was  kept  at  iiis  house,  and  used  by  his  wife  with  the  permission  of  his 
mother.  The  piano  having  been  sold  by  tlie  sheriff,  upon  an  execution  against 
tlie  son,  it  was  held,  in  an  action  of  trespass  against  the  sherifl"  therefor,  brought 
by  the  mother,  tliat  tlie  plaintiff  was  entitled  to  recover  (Graham  v.  McCreary, 
40  Penn.  St.  R.  515;  see  Brady  v.  Ilaines,  6  Harris,  113;  Smith's  Leading  Cases, 
5th  Am.  ed.  p.  73). 

Beals  v.  Guernsey  (8  Johns.  446)  was  an  action  of  trespass  against  the  aheriff 
to  recover  the  value  of  seventy-three  barrels  of  whisky.  The  whisky  was  pur- 
chased by  the  plaintitf  from  one  Johnson,  on  the  18th  of  July.  Johnson  was 
then  a  prisoner  within  the  li))erties  of  the  prison,  having  been  surrendered  by  his 
bail,  and  notoriously  a  bankrupt.  The  whisky,  when  purchased  by  the  plaintill, 
was  placed  in  the  store  of  one  Taylor;  and  the  defendant  sold  it  at  Taylor's  store 


576  WHO    MAY  MAIifTAIN   THE   ACTION.  §  563. 

§  563.  Where  personal  property  is  sold  or  pledged  by 
the  owner  to  a  creditor,  who,  after  keeping  it  a  short  time, 
returns  it  to  the  original  owner,  the  title  to  it,  in  the  absence 
of  explanation,  will  be  deemed  to  be  in  the  latter,  and  it  will 
be  liable  to  attachment  at  the  suit  of  other  creditors.  Hous- 
ton V.  Howard  -^  was  an  action  of  trespass  for  certain  wagons. 
The  plaintiff  claimed  to  hold  the  wagons  by  virtue  of  an  at- 
tachment against  one  Reed.  The  defendant  laid  claim  to  them 
under  a  prior  purchase  or  pledge  of  them  from  Reed.  The 
wagons  were  attached  by  the  plaintiff  while  in  Reed's  actual 
possession.  The  only  question  was,  whether  the  defendant 
had  permitted  the  wagons  to  go  back  into  Reed's  possession 
in  suck  a  manner  as  to  make  them  liable  to  attachment  by 

in  November,  under  an  execution  issued  against  Johnson,  on  a  judgment  rendered 
against  him  two  years  previous.  The  i)laintiif  was  present  at  the  sale,  notified, 
the  sheriff  that  the  whisky  was  his  property,  and  forbade  his  selling  it.  It  ap- 
peared that  the  phtintiff  and  several  others  became  bail  for  Johnson  for  the  lib- 
erties of  the  jail ;  that  the  whisky  was  indorsed  in  part  payment,  on  a  bond  given 
to  the  i)ail,  for  their  indemnity;  and  that  the  plaintiff's  note  of  hand,  w-'ich  he 
gave  .Johnson  for  the  whisky,  was  deposited  with  one  of  the  bail  for  his  security. 
It  was  proved  that  the  plaintiff  called  at  the  store  of  Taylor  to  receive  the  whisky, 
and  that  it  was  not  delivered  on  account  of  Taylor's  sickness.  A  principal  point 
in  the  CHse  was  whether,  under  the  circumstances,  the  sale  of  the  whisky  to  the 
plaintiff  was  fraudulent.  The  fact  of  the  non-delivery  of  the  whisky  seems  to 
have  been  sufl5ciently  accounted  for;  and  there  was  nothing  to  show  that  the 
plaintiff  knew  of  the  judgment,  or  that  he  purchased  the  whisky  with  intent  to 
defeat  the  execution.  A  verdict  having  been  found  for  the  plaintiff  at  the  Cir- 
cuit, the  Supreme  Court  refused  a  new  trial. 

One  may  have  the  exclusive  possession  of  personal  property  which  is  njion 
land  occupied  by  him  antl  another  in  common;  and  whether  or  not  he  has  such 
exclusive  possession,  must  ordinarily  be  a  question  of  fact  for  the  jury.  In  Pot- 
ter V.  Mather  (24  Conn.  551),  which  was  an  action  for  taking  a  wagon,  the 
plaintiff  claimed  title  to  the  wagon  under  a  purchase  from  his  son;  and  the  de- 
fendants claimed  it  under  an  attachment  against  the  son,  made  subsequent  to  the 
purchase.  The  plaintiff  and  his  son  occupied  in  severalty  adjoining  tenements, 
to  which  there  was  a  yard,  occupied  by  tiiem  in  common,  so  far  as  they  had  occa- 
sion to  use  it.  The  wagon,  at  the  time  of  the  purchase,  and  also  at  the  time  it 
was  attached,  was  standing  in  this  yard,  though  the  plaintiff  claimed  to  have 
taken  immediate  possessi(m  of  it  after  the  sale,  and  to  have  used  it,  and  to  have 
remained  in  the  exclusive  possession  up  to  the  time  of  the  attachment.  The  de- 
fendants insisted,  as  matter  of  law,  that  there  was  no  change  of  possession  after 
the  sale  upon  the  facts  admitted  and  claimed  by  the  plaintiff,  and  requested  the 
court  to  charge  the  jury  that  if,  at  the  time  of  the  attachment,  the  wagon  was 
upon  property  in  the  joint  possession  of  the  plaintiff  and  his  son,  and  in  tlie  same 
place  where  it  was  when  the  sale  was  made,  and  during  the  intermediate  time 
had  been  left  there,  except  when  in  actual  use  by  the  plaintiff,  there  was  no 
change  of  possession,  and  the  sale  was,  in  point  of  law,  fraudulent  and  void  as 
against  the  defendants,  who  were  attaching  cf^ditors.  The  court,  however,  sub- 
mitted to  the  jury,  as  a  question  of  fact,  upon  all  the  evidence,  whether  or  not 
there  had  been  a  change  of  possession. 

'  39  Vt.  54. 


§  5G4.        POSSESSION    OP   GOODS   OBTAINED    BY   FRAUD.  577 

Reed's  creditors.  The  wagons  were  taken  from  Reed's  pos- 
session into  the  defendant's  possession  in  March.  The  de- 
fendant allowed  Reed  to  assume  possession  in  the  following 
June.  About  a  week  after  this  resumj^tion,  the  plaintiff, 
finding  the  wagons  in  Reed's  hands,  attached  them  as  Reed's 
property.  It  appeared  that  Reed  delivered  to  the  defendant 
in  March,  not  only  the  wagons,  but  all  his  accounts,  assets 
and  business,  and  that  the  defendant  took  control  of  the 
whole,  including  Reed's  store  and  trade.  The  object  of  this 
was  to  secure  to  the  defendant  certain  debts,  and  to  enable 
him  to  realize  payment  out  of  the  avails  of  the  assets.  Reed 
still  owned  the  property,  subject  to  these  liabilities.  It  was 
held  that,  when  the  defendant,  in  June,  after  having  con- 
verted and  applied  upon  the  debts  the  most  of  the  property, 
allowed  the  remainder,  including  the  wagons,  to  return  to 
the  control  and  possession  of  Reed,  the  natural  inference  was, 
that  the  defendant  was  paid,  his  lien  extinguished,  and  that 
the  articles  surrendered  were  Reed's  absolutely ;  that  this 
would  have  been  the  reasonable  understanding,  not  only  of 
strangers,  but  even  of  parties  cognizant  of  the  details  of  the 
original  arrangement  between  Reed  and  the  defendant;  and 
that  the  plaintiff  might  attach  the  property  as  Reed's,  and 
maintain  trespass  against  the  defendant  for  taking  it  after 
the  attachment. 

§  564.  Where  goods  are  sold,  which  are  in  the  custody 
of  a  third  person,  the  buyer  must  give  the  person  who  has 
the  care  of  the  property  notice  of  the  sale,  and  such  person 
must  agree  to  keep  the  goods  for  the  buyer,  or  they  may  be 
attached  by  the  creditors  of  the  seller.^  ^  A  person  having 
bought  several  sheep  which  were  in  the  possession  and  keep- 
ing of  B.,  requested  B.,  to  whom  he  gave  notice  of  the  pur- 


'  Whitney  v.  Lynde,  16  Vt.  579. 

*  Where  property,  at  the  time  of  the  sale,  is  in  the  actual  custody  of  some 
bailee  or  depositary  for  the  vendor,  all  that  is  ever  required  in  order  to  perfect 
the  sale,  as  against  creditors,  is  that  the  depositary  shall  be  notified  of  the  trans- 
fer, and  consent  to  keep  the  property  for  the  vendee.  Cases  might  perhaps  oc- 
cur where  less  would  suffice  (Potter  v.  Washburn,   13  Vt.  558,  per  Kedfield,  J.). 

Vol,.  I.— 37 


578  WHO   MAY   MAIKTAIX   THE   ACTIOX.  §  5G4, 

chase,  to  act  for  him  in  selecting  the  sheep,  and  to  take  a 
delivery  of  and  kee})  them  for  him,  to  which  B.  assented ; 
and  shortly  afterward  a  selection  was  made  under  the  pur- 
chase, and  the  sheep  delivered  by  the  vendor  to  B.,  who 
marked  them  with  the  initials  of  the  vendee's  name,  and 
kept  them  for  him  in  the  same  situation  as  before,  until 
they  were  attached  by  a  creditor  of  the  vendor.  It  w^as  held 
that  such  sale  and  delivery  of  possession  were  sufficient,  and 
that  the  attaching  creditor  w^as  liable  to  the  vendee  in  an 
action  of  trespass.-'  In  an  action  of  trespass  for  taking  and 
carrying  away  a  sleigh,  it  appeared  that  the  sleigh  was  in 
the  shop  of  one  Ayres,  for  the  puq^ose  of  being  painted,  and 
that  Willard,  the  owner  of  it,  went  to  the  shop  with  the 
pJaintiif,  and  there  sold  him  the  sleigh,  but  no  money  was 
paid,  and  the  sleigh  w\as  not  then  actually  delivered  to  the 
•plaintiif,  though  the  painter,  wdio  was  present,  was  directed 
to  deliver  the  sleigh  to  the  plaintiff,  when  finished,  and 
agreed  to  do  so.  It  w^as  held  that  the  action,  Avhich  was 
brouo^ht  ao;ainst  a  sheriff  for  attachino;  the  sleisrh  befoi-e  it 
was  finished,  upon  a  writ  against  the  original  owner,  could 
be  maintained.^  ■^  AVhen,  however,  the  bailee  of  personal 
property  is  fully  informed  of  the  sale  both  by  the  vendor 
and  vendee,  he  becomes  keeper  for  the  true  owner  by  opera- 


'  Barney  \.  Brown,  2  Vt.  374.  -  Willard  v.  Lull,  17  Vt.  413. 

*  In  Willard  v.  Lull,  svjjrn^  the  court  said:  "  Tlie  only  question  in  this  case 
is,  whether  the  sleigh  became  the  property  of  the  present  plaintitT,  as  there  is  no 
question  made  as  to  any  actual  fraud  between  the  plaintiff  and  Willard.  We 
think  that  the  contract  l^etween  the  plaintiif  and  Willard  was  complete  and  per- 
fected at  the  shop  of  Ayres;  that  the  property  then  passed  to  the  plaintiff,  and 
that  Willard  was  entitled  to  the  price  as  soon  as  the  painting  was  finished.  All 
that  was  to  be  done  thereafter  was  to  be  done  by  Ayres,  and  nothing  by  Willard. 
In  relation  to  possession,  the  direction  to  Ayres  and  his  agreement  constituted 
him  the  agent  for  the  plaintiff,  and  his  possession  was  the  plaintiff's  possession; 
and  according  to  the  principie  established  in  relation  to  the  sale  of  property  in 
possession  of  a  third  person,  who  is  notified  and  agrees  to  keep  the  same  for 
the  vendee,  this  sleigh  was  not  liable  to  be  attaclied  for  the  debts  of  Willard. 
W'hen  the  defendant  attached  the  sleigh,  he  still  left  it  in  the  custody  of  Ayres, 
and  his  directions  to  Ayres  could  not,  by  a  quasi  attornment,  change  the  character 
in  which  he  held  the  sleigh,  as  bailee  of  the  plaintiff,  to  a  bailee  of  the  defend- 
ant. The  plaintiff  actually  had  the  custody  and  possession  of  the  sleigh  when 
it  was  forcibly  taken  from  him  by  the  defendant.  It  appears  to  us,  therefore, 
that  the  plaintiff  had  a  perfect  title  to  the  property  in  dispute,  by  sale,  by  de- 
livery, and  by  actual  possession." 


§  505.        POSSESSION    OF    GOODS    OBTAINED    BY  FRAUD.  579 

tion  of  law,  aud  his  consent  is  immaterial ;  and  if  the  vendor 
has  no  further  use  or  beneficial  interest  in  the  property,  and 
nothing  transpires  inconsistent  with  the  sale,  the  property 
will  be  protected  from  the  creditors  of  the  vendor.^ 

§  565.  After  a  sale  of  personal  chattels  has  become  per- 
fected by  such  a  visible,  notorious,  and  continued  change  of  pos- 
session, that  creditors  of  the  vendor  may  be  presumed  to  have 
notice  of  it,  the  vendee  may  lend,  or  let,  or  employ  the  vendor  to 
sell  or  perform  any  other  service  about  the  thing.^  In  case 
of  the  assignment  of  a  permit  to  cut  timber,  and  the  cutting 
of  the  timber  under  it,  there  need  not  be  a  delivery  to  enable 
the  assignee  to  maintain  an  action  against  an  officer  who  seizes 
it  under  an  attachment  against  the  assignor,  and  the  faction 
may  be  maintained  notwithstanding  the  assignor  acted  as 
the  assignee's  agent  in  manufacturing  the  timber,  after  it  was 
severed  from  the  soil,  into  boards.^  * 


•  Pierce  v.  Chipman,  8  Vt.  334.  =  Dewey  v.  Tlirall,  13  Vt.  281. 
'  Fiske  V.  Small,  25  Maine,  453. 

*  The  above  case  was  an  action  of  trespass  against  a  sheriff  for  taking  the 
plaintiffs'  lumber  under  an  attachment  against  one  Hackett.  The  plaintiffs 
proved  their  right  to  the  property  under  two  permits  to  cut  the  timber,  given  b;/ 
the  owners  of  the  land  to  Hackett,  aud  by  him  assigned  to  the  plaintiffs,  It  ap- 
peared that  U)gs  were  cut  under  tlie  permits,  and  that  Hackett  sav,-ed  them  into 
boards  on  shares;  and  that  while  he  was  sawing  them  he  spoke  of  them  and 
treated  them  as  his  own,  and  did  not  then  reveal  the  fact  that  he  acted  as  the 
agent  of  the  plaintiffs.  A  verdict  having  been  found  for  the  plaintiffs,  the  Su- 
preme Court,  in  overruling  exceptions  to  it,  said:  ''There  was  no  delivery  of 
the  logs  to  the  plaintitls  after  they  were  cut,  and  it  is  therefore  contended  by  the 
defendant's  counsel,  tliat  their  right  thereto  was  so  imperfect  as  not  to  rdlow  them 
to  contest  that  acquired  by  virtue  of  an  attachment  of  a  creditor  upon  a  precept 
against  the  assignors.  The  owners  of  the  land  make  no  complaint,  and,  indeed, 
it  is  not  perceived  that  they  could  do  so,  as  it  does  not  appear  that  the  cutting 
was  not  in  the  mode,  aud  by  the  persons  with  whom  they  contracted.  The  in- 
dividuals permitted  had  parted  with  all  their  rights  l^efore,  and  conld  not, 
after  tlie  cutting,  acquire  such  an  interest  in  the  lumber  as  to  make  it  attachable 
for  their  debts.  It  was  com])etent  for  the  pltiintitfs  to  employ  either  or  all  of 
these  as  their  agents  to  hold  possession  of  the  logs  for  them,  after  they  v/ere 
severed  froui  the  soil.  The  assignors  were  not  rendered  incapable  of  performing 
such  a  service  by  having  been  parties  to  the  original  contract.  The  case  shows 
that  the  lumber  was  in  possession  of  Hackett;  and  the  jury  have  found,  under 
proper  instructions,  that  Hackett  iiad  this  possession  and  control  of  the  pro])- 
erty  as  the  ])laintifts'  agent,  and  his  possession  nuist  be  regarded  as  theirs.  Sev- 
eral cases  have  been  cited  to  sliow  that  property  sold  and  not  delivered  does  not 
confer  a  title  on  tlie  vendee,  as  against  the  attacliing  creditor  of  the  vendor; 
also  cases  where  the  contract  is  for  a  chattel  not  in  existence,  which  -will  not 
vest  the  property  in  the  one  contracting  to  have  it  made  for  liim,  without  a  de- 
livery after  its  nuinufacture.     This  case  js  different  from  those  referred  to.     The 


580  WHO  31  AT  MAINTAIN   THE   ACTION.  §  566. 

§  56G.  But  when  tlie  purpose  for  whicli  the  possession  of 
property  is  delivered  to  another  is  inconsistent  with  the 
continued  ownership  of  him  who  parts  with  the  possession, 
the  transaction  will  be  presumed  fraudulent  as  against  pur- 
chasers and  creditors,  and  the  title  to  have  vested  absolutely 
in  the  one  to  whom  the  property  is  delivered.  Where, 
therefore,  personal  property  was  assigned  for  the  benefit  of 
creditors,  and  the  assignees,  after  taking  it  into  their  custody, 
advertised  it  for  sale,  and,  after  keeping  it  fourteen  days,  sold 
it  at  public  auction  to  a  person  who  returned  it  to  the  original 
ow^ner,  it  was  held  liable  for  the  latter's  debts.^  So,  where, 
in  an  action  for  the  wrongful  seizure  and  sale  of  certain 
liquors  on  an  execution  against  H.,  it  appeared  that  the  liq- 
uors were  delivered  by  the  plaintiffs  who  were  liquor  mer- 
chants to  n.,  a  tavern  keeper,  to  be  retailed  by  him  at  his 
bar,  and  that  the  title  was  to  remain  in  the  plaintiffs  until 
sold,  it  was  held  that  the  liquors  were  liable  to  be  taken  on 
an  execution  against  H,,  and  that  the  plaintiffs  could  not  re- 


identity  of  the  timber  -was  not  changed,  in  the  conversion  from  trees  to  logs. 
If  the  plaintiffs  had  a  claim  to  the  former,  they  had  also  to  the  latter." 

'  McGlynn  v.  Billings,  16  Yt.  329;  see  also  Hall  v.  Parsons,  15  lb.  358: 
Batchelder  v.  Carter.  2  lb.  168;  Emerson  v.  Hyde,  8  Px  352. 

-  Bonesteel  r.  Flack,  41  Barb.  435 ;  and  see  Ludden  t,  Hazen,  31  lb.  650. 

*  Where  a  minor  has  purchased  his  time  of  his  father,  he  is  entitled  to  his 
own  earnings  as  against  the  creditors  of  his  father.  Chase  v.  Elkins,  3  Vt.  290, 
was  an  action  of  trespass  against  a  deputy  sheriff  for  attaching  a  pair  of  cattle 
belonging  to  the  plaintiff.  The  plaintiff  bought  the  cattle  of  his  father,  with 
the  money  he  earned  during  the  last  year  of  his  minority,  he  having  iirst  paid 
his  father  the  whole  sum  due  hira  for  his  (the  son's)  time;  and  the  son  lent 
them  to  his  father  who  was  using  them  when  they  were  attached.  No  reason 
was  shown  why  the  cattle  did  not  belong  to  the  plaintiff,  provided  a  poor  man 
in  debt  covdd  sell  or  give  his  minor  son  his  own  earnings,  or  give  him  the  right 
to  work  for  his  own  l)enefit.  There  was  no  allegation  of  fraud,  unless  such  a 
contract  betv.een  father  and  son  was  necessarily  fraudulent  as  against  creditors. 
The  court  said:  "  K  the  father's  right  to  the  son's  labor  can  b-e  called  property, 
he  has  the  same  right  to  dispose  of  it,  in  good  faith,  as  he  has  to  dispose  of  other 
property.  He  should  have  this  right,  that  he  may  consult  the  genius,  capacity, 
and  inclination  of  the  son,  and  direct  the  whole  for  the  best  interest  of  himself 
and  son.  If  he  deems  it  best  for  his  son  to  serve  as  an  apprentice  to  some  trade, 
or  enjoy  the  patronage  of  some  gentleman  of  the  bar,  and  become  a  lawyer,  or 
the  patronage  of  some  clergyman,  and  become  a  preacher,  no  creditor  has  aright 
to  interfere  with  this,  and  claim  the  son  to  labor,  that  he  may  attach  his  earn- 
ings. Nor,  if  he  does  labor,  hare  they  any  right  to  his  earaings  until  the  same 
are  vested  in  some  attachable  property.  Possibly  the  father  might  re-assert  his 
ri^bt  over  the  son,  and  control  his  earnings  during  his  minority.     The  son  may 


§  567.         POSSESSION   OF   GOODS   OBTAINED   BY  FRAUD.  581 

§  567.  Whether  a  conveyance  or  an  attachment  is  fraudu- 
lent or  not  is  necessarily  a  question  oi  fact  to  be  submitted  to 
a  jury ;  otherwise,  an  attaching  creditor  could  not,  under  any 
circumstances,  leave  the  property  purchased  or  attached  in 
the  possession  of  the  original  owner  for  a  moment  after  a 
reasonable  time  had  elapsed  for  its  removal,  and  no  evidence 
would  be  admissible  to  prove  the  transaction  hona  fide.  * 
Koster  v.  Merritt^  was  an  action  of  trespass  for  taking  a 
sloop.  Hubbard  and  Dayton,  of  Greenwich,  Connecticut, 
were  the  owners  of  the  sloop,  which  they  had  run  between 
Greenwich  and  New  York,  and  they  sold  it  in  New  York  to 
the  plaintiff,  a  resident  of  New  York,  for  its  full  value,  part 
of  the  consideration  being  a  debt  which  they  owed  the 
plaintiff,  and  the  residue  the  assumption  by  the  plaintiff  of 
certain  debts  due  from  Hubbard  and  Dayton.  The  plaintiff 
took  formal  possession  of  the  sloop,  but  immediately  engaged 
Hubbard,  who  had  been  acting  as  her  captain,  to  remain  in 
the  same  situation,  notified  the  crew  of  the  purchase,  and 
employed  them.  There  were  other  facts  in  the  case  from 
which  an  inference  could  be  drawn  that  the  possession  was 
retained  by  the  vendors.     Soon  after  the  sale  the  vessel  pro- 

so  conduct  that  it  would  be  his  duty  so  to  do.  And  the  cattle  being  in  the  pos- 
session of  the  father  and  used  by  him,  as  stated  in  this  case,  might  be  proper 
evidence  for  the  jury  to  weigh,  if  such  a  question  were  urged.  But  the  case  puts 
this  at  rest.  For  it' states  that  the  plaintiif  bought  the  steers  with  his  earnings, 
and  lent  them  to  his  fatlier." 

In  Hunter  V.  Westbrook,  2  C.  &  P.  578,  the  plaintiff  had  given  to  his  son, 
when  sixteen  years  of  age,  a  watch  and  some  other  property.  The  watch 
got  into  the  possession  of  the  defendant,  who  detained  it  agaiijst  the  son  and  the 
lather.  The  plaintiff  brought  trover  for  the  watch.  The  court  decided  that  he 
could  not  maintain  tlie  action,  because  his  title  and  right  of  possession  had  been 
divested  by  a  gift  to  the  son. 

A.'s  goods  Avere  sold  by  the  sheriff  under  execution,  bought  by  B.  and  sold  by 
him  to  A.'s  wife.  The  property  having  passed  into  the  possession  of  the  ven- 
dee, and  the  vendor  having  received  a  considerable  portion  of  the  purchase 
money,  it  was  held  that  he  could  not  maintain  trespass  against  the  sheriff  for 
again  selling  tlie  goods  as  the  property  of  A.  (Waldrou  v.  Haupt,  52  Penn.  St. 
R.  408). 

'  32  Conn.  24G. 

*  It  is  believed  that  none  of  the  cases  go  this  length  except  Edwards  v.  Har- 
ben,  2  Term.  R.  5«7,  and  Hamilton  v.  Russell,  1  Cranch.  97.  In  all  other 
cases  the  question  wliether  the  sale  was  fraudulent  or  not  has  been  submitted  to 
the  jury.  See  Burrows  v.  Stoddard,  3  Conn.  431.  The  New  York  Revised 
Statutes  (5th  ed.  vol.  3,  p.  225)  provide  that  the  question  of  fraudulent  intent 
shall  be  deemed  a  qucfetiou  of  fact  and  not  of  law. 


582  WHO   3IAY  MAINTAIN   THE  ACTION.  §  5G7- 

ceeded  to  Greenwich,  where  it  was  attached  by  the  defend- 
ant, who  was  a  creditor  of  Hubbard  and  Dayton^  as  their 
property.  Thereupon  the  plaintiff  brought  this  action.  The 
defendant  contended  that  possession  by  the  vendors  made  the 
sale  in  law  fraudulent  and  void  as  to  creditors.  But  the 
judge  who  presided  at  the  trial  received  proof  of  the  facts 
only  as  evidence  of  fraud,  and  a  verdict  having  been  found 
for  the  plaintiff,  the  Supreme  Court  refused  to  disturb  it.  "^^ 
The  declarations  and  acts  of  a  debtor  respecting  property 
alleged  by  an  attaching  creditor  thereof,  or  one  representing 
him,  to  have  been  fraudulently  conveyed  to  the  party  claiming 
it,  made  or  done  before  the  supposed  sale,  are  admissible  in 
evidence  if  such  declarations  and  acts  have  a  tendency  to 
show  that  the  sale  was  made  with  a  fraudulent  desiofii. 
Such  evidence  becomes  no  less  admissible  when  the  declara- 
tions and  acts  are  in  the  absence  of  tlie  party  to  whom  the 
sale  is  made.  The  one  who  alleges  the  fraudulent  sale  must 
establish  two  propositions:  One  that  the  vendor  conve3'ed 
the  property  for  the  purpose  of  defrauding  or  delaying  his 
creditors;  and  the  other,  that  the  vendee  participated  in  the 
fraud.  The  former  proposition  being  distinct  from  the  other, 
may  be  proved  by  statements  and  conduct  of  the  vendor 
unknown  to  the  vendee.  The  presence  of  the  vendor  in  court, 
when  such  evidence  is  offered,  is  no  objection  to  the  testi- 


*  In  Koster  v.  Merritt,  supra,  the  court,  per  Dntton,  J.,  said  :  "  This  sale  was 
made  in  New  York,  and  we  think  the  contract  must  be  governed  in  its  construc- 
tion and  effect  by 'the  law  of  that  State.  It  is  now  well  settled  by  the  decisions 
of  the  courts  of  New  York  that  such  circumstances  of  the  retention  of  the  posses- 
sion by  the  vendor  as  existed  in  this  case,  and  such  other  circumstances  as  tended 
to  show  a  secret  trust,  are  only  evidence  of  fraud,  and  do  not  authorize  the  court 
to  pronounce  the  sale  fraudulent  fcr  se.  It  has  been  strongly  urged  that  the  ler 
loci  contractus  does  not  apply  to  such  a  case  as  this;  that  that  doctrine  is  only 
applicable  where  the  construction  or  validity  of  a  contract  considered  by  itself  is 
in  question;  but  that  the  point  made  here  is,  whether  proof  of  facts  occurring 
after  the  contract  is  complete  can  be  admitted,  and  what  effect  is  to  be  given  "to 
such  evidence;  that  this  question  is  one  which  each  court  must  determine  for 
itself  to  regulate  its  own  action,  and  that  for  this  purpose  the  same  rules  should 
in  all  cases  be  adopted,  without  reference  to  the  locality  of;  the  transaction.  It 
must  be  acknowledged  that  the  presentation  of  the  question  has  much  plausi- 
bility, but  we  think  it  ought  not  to  prevail.  The  principle  which  lies  at  the 
foundation  of  the  lex  loci  applies  vv'ith  full  force  to  such  a  case  as  this," 


§  5G8.        POSSESSION   OF   GOODS   OBTAINED   BY  FRAUD.  583 

mony,  wliicb  is  not  to  be  excluded  by  tlie  subsequent  call  of 
the  vendor  as  a  witness  by  tlie  same  party .^  * 

§  568."  A  sale  of  goods  may  be  void  as  to  any  legal 
remedy  upon  it,  and  valid  as  to  tlie  possession  of  the  vendee. 
Where  goods  were  sold. on  Sunday  to  be  delivered  afterward, 
and  on  a  subsequent  Sunday  the  vendor  gave  the  vendee 
permission  to  take  them  away,  which  he  did  the  Monday 
following,  it  was  held  that  the  vendee  might  hold  the  goods 
not  only  against  the  vendor,  but  also  against  the  creditors  of 
the  vendor.^  f     It  is  generally  said  of  such  an  illegal  contract 

'  White  V.  Chadbourne,  41  Maine,  149. 

^  Smith  V.  Bean,  15  N.  Hamp.  577. 

*  Pierce  v.  Hoffman,  24  Vt.  525,  was  an  action  of  trespass  for  a  wagon  which 
the  defendant  had  attached  and  sold  as  the  property  of  one  Butterfield,  the 
plaintiff  claiming  that  he  had' previously  bought  the  wagon  of  Butterfield.  The 
defendant  introduced  evidence  tending  to  prove  that  the  sale  of  the  wag:m  by 
Butterfield  to  the  plaintiff  was  fraudulent,  and  it  was  held  that  other  fraudulent 
transactions  between  the  parties  about  the  same  time  of  the  one  in  question  was 
admissible.  By  the  court :  "In  cases  of  this  kind  there  is  a  probable  connection 
in  a  series  of  sales,  nearly  at  the  same  time,  the  result  of  which  is  to  strip  a  man 
of  his  available  property,  and  enable  him  to  leave  the  country.  It  would  be  im- 
possible generally  to  show  the  object  and  intention  of  the  parties  without  allow- 
ing everything  to  come  into  the  case  which  might  fairly  be  supposed  to  have  a 
connection  with  the  general  design  to  be  ultimately  accomplished.  A  fraudu- 
lent transaction  between  the  same  parties,  which  had  no  connection  with  the 
particular  failure,  might  not  be  competent  evidence.  But  all  which  regarded 
the  very  failure  and  absconding  (and  it  would  seem  the  testimony  objected  to 
had  such  connection)  should  go  before  the  jury.  If  this  were  not  so,  it  would  be 
in  the  power  of  parties,  by  subdividing  such  transactions,  to  altogether  destroy 
the  force  of  the  evidence  resulting  from  their  general  character." 

t  This  was  an  action  of  trespass  for  taking  a  pair  of  oxen.  It  appeared  that  the 
cattle  were  sold  to  the  plaintiff  by  one  Boies  on  Sunday;  that  on  a  subsequent 
Sunday  Boies  agreed  that  the  plaintiff  might  send  and  take  them  away,  which 
the  plaintiff  did'the  next  day;  and  that  a  few  days  afterward  the  defendant  at- 
tached them  as  the  property  of  Boies  in  the  possession  of  the  plaintiff.  The  court, 
in  holding  that  the  plaintiff  was  entitled  to  recover,  said:  "  The  contract  of  sale 
by  Boies  to  the  ])laintitt"  was  made  on  the  Sabbath.  The  plaintiff  took  posses- 
sion of  the  oxen  on  Monday.  If  Boies  had  delivered  them  on  that  day,  the 
completion  of  the  sale  by  the  delivery  being  lawful,  it  would  not  have  formed  a 
legal  objection  to  the  sale  that  the  negotiation  respecting  it,  ending  in  an  agree- 
ment to  make  it,  took  place  at  a  time  when  secular  labor  was  forbidden  and  un- 
lawful. The  contract  would  hav^e  been  executory  until  perfected  by  the  delivery, 
and  the  perfected  contract  of  sale  would  have  been  lawful  and  binding.  But 
the  report  shows  no  delivery  of  the  oxen  by  Boies  on  Monday.  Tiie  plaintiff 
took  possession  of  tliem  on  that  day,  but  it  was  by  the  direction  or  permission 
of'  Boies  given  on  the  previous  day.  All  that  was  done  by  Boies  was  done  on 
Sunday.  If  he  sold  the  property  then  it  was  on  that  day.  The  contract  of  sale 
was  made  that  day,  and  the  plaintifi'  took  possession  of  his  purchase  the  next 
day.  If  Boies  were  now  seeking  to  recover  the  purchase  money,  we  must  on 
tiiese  facts  hold  the  sale  to  have  been  illegal,  giving  the  vendor  no  right  of  ac- 
tion.    *****     The  plaintifi'  received  the  oxen  with  the  assent  of  Boies 


584  WHO  MAY  MAINTAIN  THE  ACTION.  §  568. 

tLat  it  is  void.  If  this  were  so,  no  property  would  pass  by 
it ;  the  vendor  might  reclaim  the  property  at  will,  and  being 
his  pi'operty,  it  would  be  subject  to  attachment  and  levy  by 
his  creditors  in  the  same  manner  as  if  the  attempt  to  sell  had 
never  been  made.  But  this  is  not  what  is  intended  by  such 
phraseology.  The  transaction  being  illegal,  the  law  leaves 
the  parties  to  suffer  the  consequences  of  their  illegal  acts. 
The  contract  is  void  so  far  as  it  is  attempted  to  be  made  the 
foundation  of  legal  proceedings.  The  law  will  not  assist  the 
vendor  to  recover  the  price.  The  vendee  has  the  possession 
of  his  own  property  with  the  assent  of  the  vendor,  and  the 
law  leaves  the  parties  where  it  finds  them. 


upon  a  contract  of  sale,  which  in  effect  passed  the  property  as  between  them, 
whether  the  plaintiff  paid  or  not,  and  if  he  did  not,  whether  Boies  can  recover 
the  price  of  him  or  not,  is  immaterial.  The  plaintiff  is  entitled  to  hold  the  oxen 
against  Boies,  and  may  therefore  hold  them  against  the  creditors  of  Boies  unless 
the  sale  was  fraudulent  as  to  creditors.  The  fact  that  it  was  illegal,  because 
against  the  policy  and  prohibitions  of  the  law,  does  not  show  that  it  was  fraudu- 
lent as  against  creditors,  and  there  is  nothing  in  the  case  to  show  actual  fraud  " 
(citing  Drury  v.  Defontaine,  1  Taunt.  131 ;  Allen  v.  Deming.  14  N.  Hamp. 
133,  137,  138,  and  cases  there  cited;  Lewis  v.  Welch,  14  N.  Hamp.  294,  298; 
Fennell  v.  Ridler,  5  Barn.  &  Cres.  406;  Clark  v.  Gibson,  12  N.  Hamp.  386.) 


CHAPTER   V. 

REMEDY   FOR   THE    WROI^GFUL   TAKING    OR  INJURY  OF  PERSONAL 

PROPERTY. 

1.  Ground  of  action. 

2.  Declaration. 

3.  Grounds  of  defense. 

4.  Plea. 

5.  Replication. 

6.  Evidence  of  possession. 

7.  Proof  of  taking. 

8.  Evidence  as  to  value. 

9.  Proof  of  time. 

10.  Attendant  circumstances. 

11.  Intention. 

12.  Presumptions. 

13.  Evidence  of  justification. 

14.  Evidence  in  mitigation  of  damages. 

15.  Objections  to  evidence,  when  to  be  made. 

16.  Damages  in  general. 

17.  Exemplary  damages. 

1.   Ground  of  action. 

§  569.  The  owner  of  personal  property  whicli  lias  been 
unlawfully  seized  and  sold,  may  either  disaffirm  the  act  and 
sue  for  a  trespass,  or  for  a  conversion  of  the  property,  or  he 
may  affirm  the  act  and  claim  the  benefit  of  the  transaction.* 
But  if  he  has  once  affirmed  the  act,  he  cannot  afterward  treat 
it  as  a  wrong,  nor  can  he  affirm  the  act  in  part  and  avoid  it 
in   part,^  f      Where  machinery  of  a  mortgagor  was  levied 

'  Brewer  v.  Sparrow,  7  B.  &  C.  310;  Lythgoe  v.  Vernon,  5  H.  &  N.  180. 

*  In  cases  where  either  trespass  or  trover  might  be  maintained,  the  injured 
party  may,  if  he  choose,  waive  both  the  trespass  and  the  conversion,  and  recover 
for  any  damages  he  mav  have  sustained,  in  a  special  action  on  the  cas^e  (Brans- 
comh  V.  Bri.lges,  1  B."' &  C.  145;  Phillips  v.  Bacon,  9  East,  298;  Smith  v. 
Goodwin,  2  Nev.  &  Man.  114;  Gilson  v.  Fisk,  8  N.  Hamp.  404;  Christopher 
v.  Covingtou,  2  B.  Mon.  357. 

Tiie  question  of  waiver  is  one  of  fact,  and  not  of  law,  depending  upon  the 
acts  and  intentions  of  the  parties,  and  all  the  circumstances  of  each  particular 
case  upon  which  it  is  the  province  of  the  jury  to  pass  (Coffin  v.  Field,  7  Cush. 
355). 

tif  the  plaintiff,  in  an  action  against  an  infant  for  injuring  a  hired  horso,  de- 
clares in  case,  he  thereby  affirms  the  contract  of  hiring,  and  the  plea  of  infancy 


580         REMEDY  FOR  WKONGFUL    TAKING  OF   PROPERTY.    §  570. 

upon  in  the  mill  of  the  mortgagee,  and  the  mortgagee  was 
in  the  mill  part  of  the  time  during  the  sale,  and  waived  all 
objections  thereto,  and  certain  nuts,  wa-enches,  and  screws  be- 
longing to  the  mortgagee  w^re  taken  or  lost  by  the  bidders 
without  the  knowledge  of  the  officer  or  his  assistants,  it  was 
held,  that  the  latter  w'ere  not  liable  to  the  mortgagee  there- 
for.^ Simply  receiving  the  benefit  of  property  in  its  use  by 
one  wdio  wrongfully  took  it,  does  not  constitute  a  basis  for 
an  action  of  assumpsit  by  the  ow^ner.  To  enable  him  to 
bring  such  an  action,  the  goods  must  have  been  converted 
into  money  or  money's  worth,^  But  w^hile  goods  which  have 
been  wrongfully  taken  are  in  the  custody  of  the  defendant, 
the  action  may,  by  contract,  be  converted  into  an  action  for 
goods  sold  and  delivered,  the  subsequent  assent  to  treat  the 
matter  as  restino^  in  contract  havino;  relation  back  to  the 
time  the  goods  were  taken,  and  in  legal  effect  converting  it 
into  a  sale  of  the  goods  at  the  request  of  the  defendant.^ 
When,  however,  the  proof  fails  as  to  the  wrongful  taking, 
the  plaintiff  cannot  waive  the  tort  at  the  close  of  the  case 
and  recover  as  upon  a  contract.^ 

§  570.  The  plaintiff  may  make  the  wrongful  entry  of  the 
defendant  the  gist  of  his  action,  or  w^aive  the  wrongful  entry 
and  rely  upon  the  taking  and  carrying  away;  and,  in  either 
case,  the  judgment  may  be  pleaded  and  shown  in  evidence 
in  bar  of  another  action.  In  Wadleigh  v.  Janvrin,^  which 
was  an  action  of  trespass  by  the  vendee  of  a  farm  against  the 
vendor  for  carrying  away  from  the  premises,  after  the  sale,  a 

■will  be  a  good  defense,  for  the  plaintiff  cannot  afHrm  the  contract  and  at  the 
same  time,  by  alleging  a  tortious  breach  of  it,  deprive  the  defendant  of  his  plea 
of  infancy  (Campbell  v.  Stakes,  2  "Wend.  137). 

'  FuUam  v.  Stearns,  30  Vt,  443. 

•  Jones  Y.  Hoar,  5  Pick.  285,  and  post  ;  Balch  v.  Patten,  45  Maine,  41 ;  Glass 
Co.  V.  Wolcott,  2  Allen,  227;  Smith  v.  Smith,  43  N.  Hanip.  536;  Gilmore  v. 
Wilbur,  12  Pick.  124;  Allen  v.  Ford,  19  lb.  217;  Mann  v.  Locke,  11  N.  Hamp. 
248;  White  v.  Brooks,  43  N.  Hamp.  402;  1  Chit.  PI.  39,  40.  But  see  Hill  v. 
Davis,  3  N.  Hamp.  384 ;  Cummins  v.  Noyes,  1 0  Mass.  435. 

'  Stearns  v.  Dillingham,  22  Vt.  624.         *  Ransom  v.  Wctmore,  39  Barb.  104. 

'Wadleigh  v.  Jauvrin,  41  N.  Hamp.  503;  Woods  v.  Banks.  14  Ih.  101; 
Lyford  V.  Putnam,  35  lb.  563;  Nelson  v.  Burt.  15  Mass.  204;  WoodrulT  v. 
Halsev,  8  Pick.  333;  Walker  v.  Sherman,  20  Wend.  G36 ;  Goodrich  v.  Jones,  2 
Hill,  142. 


§  571.  GROUND   OF   ACTION.  587 

cider  mill  and  other  articles,  it  ^vas  contended  by  the  defend- 
ant that,  even  if  the  property  in  question  passed  by  the  con- 
veyance as  part  of  the  real  estate  or  affixed  thereto,  the 
present  action  could  not  be  maintained,  but  only  trespass 
quare  dausum.  It  was  held,  however,  that  when  the  de- 
jfendant  removed  the  cider  mill  and  other  articles  from  the 
farm  they  were,  by  his  wrongful  act,  converted  from  chattels 
real,  or  fixtures,  into  chattels  personal ;  that  the  title  and 
ownership  still  remained  in  the  plaintiff,  and  that  for  their 
subsequent  appropriation  the  defendant  was  liable  either  in 
trespass  or  trover. 

§  571.  If  an  infant  wilfully  injures  personal  property, 
trespass  will  lie  against  him  therefor.^  In  an  action  for  ex- 
ploding a  fire  cracker  under  the  horse  of  the  plaintifl^  while 
passing  through  one  of  the  public  streets  of  a  city  on  the 
Fourth  of  July,  whereby  the  horse  became  frightened  and 
fell  down  and  died,  it  was  held,  that  the  infancy  of  the  de- 
fendant was  no  protection.  There  w^as  a  controversy  at  the 
trial  in  the  court  below,  whether  or  not  the  defendant  was 
requested  by  the  plaintiff  not  to  ex]:)lode  the  cracker.  It  was 
held,  that  this  was  not  important  in  any  view,  although  if 
the  act  was  done  after  the  defendant  was  requested  to  desist, 
it  would  show  that  the  boy  was  reckless  of  the  conse- 
quences.^ * 

'  Campbell  v.  Stakes,  2  Wend.  137;  ante,  §  40.  ^ 

'  Conklin  v.  Thompson,  29  Barb.  218. 

*  The  real  question  at  issue  in  the  above  case  was  as  to  the  cause  of  the  death 
of  the  horse.  The  proof  showed  that  the  defendant  threw  the  lighted  cracker 
under  the  horse,  whtre  it  exploded;  that  the  horse  appeared  much  frightened, 
sheared  toward  the  sidewalk,  reeled,  and  fell,  and  almost  immediately  expired. 
He  was  proved  to  have  been,  up  to  that  time,  in  good  health;  was  18  years  old, 
and  had  traveled  twenty-two  miles  in  five  hours  that  morning.  Some  of  the 
witnesses  thought  he  died  from  apoplexy  caused  by  over-driving,  and  some 
from  fright.  It  being  purely  a  question  of  fact,  and  the  jury  having  found  a 
verdict  for  the  plaintiff,  the  court  refused  to  disturb  it. 

It  was  lield,  in  North  Carolina,  that  trespass  would  not  lie  against  a  bailee 
unless  the  projierty  had  been  destroyed  by  him  (Setzar  v.  Butler,  5  Ired.  212). 
Where  a  servant,  in  the  ordinary  performance  of  his  master's  duty,  but  without 
his  knowledge,  uses  the  property  of  another  and  injures  it,  trespass  is  not  the 
proper  remedy  against  tlie  master  (Gordon  v.  Rolt,  7  D.  &  L.  87). 

In  New  York,  in  an  action  for  the  wilful  and  wrongful  injury  of  tlie 
plaintiff's  property,  and  for  wrongfully  and  wilfully  depri\ing  him  of  the  use  of 


588         REMEDY    FOR  WRONGFUL   TAKING  OF   PROPERTY.     §  572. 

2.    Declaration. 

§  572.  The  declaration  must  specify  wliat  goods  were 
taken.  A  general  averment  that  there  were  taken  goods,  to 
wit,  one  hundred  articles  of  household  furniture  and  one 
hundred  articles  of  wearing  apparel,  without  describing  their 
nature  or  quality,  will  be  insufficient.^  *  But  in  an  action 
for  taking  and  carrying  away  several  descriptions  of  poultry, 
the  plaintiff  need  not  allege  how  many  there  were  of  each 
description,  the  collective  value  of  the  whole  being  stated.^ 
So,  likewise,  a  declaration  in  trespass,  for  taking  and  carrying 
away  mahogany  tables,  chairs  and  a  bureau,  without  stating 
the  number  of  tables  and  chairs,  was  held  good  after  ver- 
dict: as  "the  jury  must  have  had  evidence  of  the  number  of 
the  several  articles  taken;  at  least  they  would  have  found 
damages  only  for  so  many  as  were  proved."  ^  The  omission 
to  specify  the  value  of  the  articles  carried  away,  would  be  a 
defect  of  form,  which  could  only  be  taken  advantage  of  by 
special  demurrer — the  defect  being  cured  by  pleading  in  chief, 
and  by  the  verdict.*  f 

certain  parts  of  such  property,  the  defendant  may  be  arrested  and  imprisoned 
upon  execution  (Niver  v.  Niver,  43  Barb.  411).  In  Tracy  v.  LeUmd,  2  Sandf. 
729,  disapproving  Starr  v.  Kent,  2  Code  R.  30,  which  was  an  action  against  a 
female  for  the  wrongful  taking  of  a  piano,  the  plaintiif  rested  his  right  to  an 
arrest  on  the  sole  ground  that  a  wrongful  concealment  and  withholding  of  the 
property  is  in  itself  a  wilful  injury  to  it.  The  court,  in  discharging  the  defend- 
ant from  arrest,  remarked  that  the  two  things  were  in  their  nature  entirely 
different.  The  ground  taken  by  Mason,  J.,  in  Tracy  v.  Leland,  2  Sar.df.  S.  C. 
729,  that  the  wilful  injury  to  property  for  which  the  arrest  of  a  female  is  allowed 
by  the  code,  is  a  physical  injury,  such  as  breaking  it  to  pieces,  or  otherwise  dam- 
aging it  intentionally,  whereby  its  value  is  lessened  or  destroyed,  was  disap- 
proved in  Solomon  v.  Waas,  2  Hilton,  179,  per  Daly,  J. 

'  Holmes  v.  Hodgson,  8  Moore,  379. 

°  Donaghe  v.  Rondeboush,  4  Munf.  251. 

'  Richardson  v.  Eastman,  12  Mass.  505. 

*  Bertie  v.  Pickering,  4  Burr.  2455;  Strode  v.  Hunt,  2  Lev.  230;  Usher  v. 
Bushell,  1  Sid.  39;  Newconib  v.  Rumer,  2  Johns.  421  note;  Baker  v.  Baker,  13 
Mete.  125. 

*  An  averment  of  "furniture,  &c,,"  will  not  include  coffee,  sugar  and  apples 
(Whitmore  v.  BoAvman,  4  Greene  (Iowa),  148).  But  under  a  declaration  In  tres- 
pass, for  taking  the  plaintiff's  goods,  chattels  and  effects,  it  was  held,  that  he 
might  recover  the  value  of  fixtures  (Pitt  v.-Shew,  4  B.  &  A.  206). 

Where  the  taking  of  personal  property  is  one  single  and  indivisible  act,  the 
plaintiff  will  not  be  permitted  to  split  up  his  claim  for  damages  into  separate  suits 
for  each  article  seized  (Farrington  v.  Payne,  15  Johns.  432). 

t  In  Higgius  v.  Hay  ward,  5_Vt.  73,  which  was  an  action  of  trespass  for  taking 


§§  573,  574.  DECLARATION.  589 

§  573.  The  plaintiif  need  Dot  anticipate  in  his  declaration 
the  defense ;  as  that  on  a  certain  day  the  defendant,  being  an 
officer,  and  having  certain  writs  against  A.,  B.  or  C,  by  vir- 
tue thereof  took  the  plaintiff's  goods  ;^  or,  that  the  plaintiff 
is  mari'ied  and  has  a  family,  and  that  the  property  taken  is 
exempt  from  execution.^ 

§  574.  If  the  declaration  shows  a  good  cause  of  action,  it 
will  be  sufficient,  notwithstanding  it  contains  other  allega- 
tions which  are  unnecessary  or  false.*    Accordingly,  where  the 


a  chaise  and  harness,  it  was  insisted  that  the  omission  of  the  words  "w^YA  force 
rtrn^^  ar???8, "  in  the  declaration,  was  fatal.  The  court,  in  holding  that  such  an 
omission  did  not  vitiate,  unless  met  by  a  special  demurrer,  said:  "There  exists 
in  this  State  neither  of  the  reasons  which  ever  existed  in  England,  for  making 
this  averment  in  a  civil  action.  When  first  introduced  in  England,  the  civil  action 
was  also  a  criminal  process;  and  if  the  plaintiff  recovered  damages,  a  fine  was  as- 
sessed to  the  king.  Plence  the  vi  et  armis  and  contra  fcicem  were  apt  expressions 
in  reference  to  one  part  of  the  judgment  that  must  be  rendered  in  the  action,  if 
the  plaintifl' recovered  at  all.  When  the  statute,  5  Wm.  &  Mary.  c.  12,  abolished 
this  fine,  it  created  a  substitute  by  requiring  the  plaintifl',  on  signing  judgment, 
to  pay  a  fixed  sum,  which  he  recovered  back  in  his  judgment.  And  the  xi  ct 
armii  seems  as  necessary  to  secure  this  substitute  as  it  did  before  to  warrant  the 
fine.  But  by  the  statute,  4  &  5  Ann.  c.  16,  the  omission  of  vi  et  nrmis  and  contni 
pacem  is  aided,  except  on  special  demurrer  (Gould's  PL  pp.  188,  189).  In  this 
State  there  never  has  been  a  fine  imposed  upon  the  defendant,  nor  any  duty  col- 
lected of  the  plaintiff,  in  an  action  of  trespass,  any  more  than  in  an  action  of 
assumpsit ;  and  there  never  has  been  any  reason  for  inserting  those  expressions 
in  our  writs  of  trespass,  except  preserving  a  reverence  for  ancient  forms;  and 
when  the  reason  for  a  law  ceases,  the  law  itself  ceases,  in  many  cases,  at  least. 
Moreover,  the  practice  under  some  very  ancient  English  statutes  is  so  interwoven 
with  the  common  law,  it  has  come  down  as  a  part  of  the  common  law,  and  ha« 
become  a  part  of  the  common  law  in  this  State.  On  one  or  more  of  these  grounds, 
the  insertion  of  the  vi  et  armis,  in  civil  actions  of  trespass,  has  long  since  lost  its 
seeming  importance,  unless  the  omission  is  met  by  a  special  demurrer." 

'  Dane  v.  Gilmore.  49  Maine,  173;  Davis  v.  Cooper,  6  Miss.  148. 

-  Stevens  v.  Somerindyke,  4  E.  D.  Smith,  418. 

*  A  count  for  taking  away  goods  may  be  united  with  a  count  for  trespass  to 
land  (Wilson  v.  Johnson,  1  Iowa,  147). 

The  statute  of  Connecticut,  which  authorizes  the  joinder  of  trespass  and 
trover,  does  not  alter  the  character  of  either  form  of  action  when  joined.  In 
Belden  V.  Granniss,  27  Conn.  511,  the  declaration  contained  two  counts.  The 
first  was  in  trover,  for  the  conversion  of  certain  goods  belonging  to  the  plaintiff, 
and  the  second  was  in  tresj)ass,  for  the  taking  and  carrying  away  of  the  same  ar- 
ticles. By  the  common  law,  these  counts  could  not  be  joined ;  and  the  question 
was,  whether  the  joinder  was  proper  under  the  statute  which  provided  that 
''  one  or  more  counts  in  trespass  on  the  case,  founded  in  tort,  maybe  joined  with 
one  or  more  counts  in  trespass  in  the  same  declaration,  when  all  of  such  counts 
are  for  the  same  cause  of  action."  The  goods  in  question  were  used  l)y  the 
plaintiff  in  carrying  on  the  Iiusiness  of  a  milliner.  The  second  count  set 
forth,  with  particularity,  the  circumstances  attending  the  trespass  upon  the  goods, 
and  then  proceeded  to  describe  the  consequences  resulting  to  the  plaintiff  from 
the  wrongful  act  of  the  defendants  in  taking  and  carrying  away  the  property, 


590         REMEDY   FOR  WRONGFUL  TAKING   OF   PROPERTY.    §  574. 

plaintiff  admitted  m  liis  pleading,  that  the  trespasser  had  re- 
turned the  property,  with  the  qualification  that  the  property 
was  returned  in  a  damaged  state ;  it  was  held,  that  as  if  the 
same  facts  had  appeared  in  evidence,  without  having  been  set 
out  in  the  complaint,  the  return  would  have  gone  in  mitigation 
of  damao-es ;  the  circumstance  that  the  plaintiff  had  unneces- 
sarily inserted  a  statement  of  the  mitigating  fact  in  his  com- 
plaint, was  of  no  legal  consequence.^    Again,  the  plaintiff  hav- 
ino-  averred  that  the  defendant,  without  reasonable  or  probable 
cause,  instituted  a  suit  against  the  plaintiff  in  a  court  which  • 
had  no  jurisdiction,  and  attached  and  kept  the  plaintiff's  prop- 
erty foi'  twenty  days,  the  defendant  contended  that  the  dec- 
laration was  for  a  malicious  prosecution,  and  could  not  be 
maintained  as  an  action  of  trespass.     But  it  was  held  that 
the  seizure  of  the  property  was  a  trespass  for  which  the 
plaintiff  was  entitled  to  recover  as  a  substantive  ground  of 
damages.^     So,  likewise,  where,  in  an  action  of  trespass  for 
levying  upon*  the  property  of  A.  under  an  execution  against 
B.,  it  appears  that  the  plaintiff"  set  up  a  claim  to  other  and 
distinct  parcels  of  the  personal  property  which  once  belonged 
to  the    plaintiff    in  the  execution,  such  claim,  though  un- 
founded and  fraudulent,  will  not  deprive  the  plaintiff  of  his 
rip-ht  of  action,  or  diminish  the  amount  which  he  is  entitled 


as  follows:  "  That  the  defendants,  by  forcibly  taking  possession  of  the  store  of 
the  plaintiff,  and  by  seizing  said  goods,  and  by  putting  men  in  said  store,  and 
entering  therein  themselves,  did  completely  cause  the  business  of  tlie, plaintiff  to 
cease,  and  did  prevent  said  workmen  in  the  employ  of  the  plaintiff  from  contin- 
uing their  said  work,  and  did  hinder,  obstruct  and  stop  the  business  of  the  plaint- 
iff" for  a  long  space  of  time,  to  wit,  for  the  space  of  three  days,  and  did  cause 
the  plaintiff  great  expense  in  traveling  to,  and  being  detained  in,  the  city  of 
Nev/  York,  for  the  purpose  of  purchasing  other  goods  to  supply  the  place  of 
those  taken."  The  defendant  insisted  that  the  second  count  set  forth  not  only 
the  cause  of  action  described  in  the  first  count,  but  likewise  a  trespass  to  the 
real  estate  of  the  plaintiff;  and  also  a  cause  of  action  in  case,  for  the  injuries 
resulting  to  her  in  the  loss  of  business,  and  in  being  subjected  to  troulile  and 
expense  in  procuring  other  goods.  The  court,  however,  held  that  it  was  clear 
that  the  sole  ground  of  complaint  made  by  the  plaintiff  was  the  trespass  com- 
mitted upon  tlie  goods;  that  the  matters  set  forth,  whicli  the  defendant  claimed 
constituted  separate  causes  of  action,  were  alleged  merely  to  aggravate  the  dam- 
ao-es  resulting  from  the  trespass;  and  that  consequently  there  was  no  misjoinder 
of  counts. 

'  Kerr  v.  Mount,  28  K  Y.  R.  659.  ^  Whiting  v.  Johnson,  6  Gray,  246. 


§§  575,  570.  DECLARATION.  591 

to  recover  for  the  property  actually  belonging  to  liim,  and 
which  was  illegally  taken  by  the  defendant.^ 

§  575.  There  must  be  an  averment  of  the  plaintiff's  title 
to  the  property.^  la  Carlisle  v.  Weston,^  the  declaration  did 
not  allege  that  the  plaintiff  owned  the  goods,  or  that  he  had 
the  possession  or  right  to  their  possession.  A  verdict  hav- 
ing been  found  for  him,  on  a  motion  in  arrest  of  judgment, 
Shaw,  C.  J.,  said  :  "  The  declaration  is  fatally  defective  in  not 
stating  the  plaintiff's  title.  The  court  have  no  means  of 
knowing,  from  the  minutes  of  the  judge  who  tried  the  case, 
or  otherwise,  that  the  plaintiff's  property  in  the  goods  was 
proved  ;  and  not  being  stated  in  the  declaration,  it  is  not  to 
be  presumed."  And  where  the  declaration  only  averred  an 
assignment  of  the  property  to  the  plaintiff  by  the  original 
owner,  without  setting  up  an  assignment  of  the  claim  for 
damages  for  the  taking,  it  was  held  that  there  couhl  be  no 
recovery.'* 

§  576.  But  if  the  allegation,  though  technically  deficient, 
be  substantially  an  averment  of  property  in  the  plain ti^, 
the  declaration  will  be  sustained.  In  Stanley  v.  Gaylord,"'^ 
which  was  an  action  of  trespass  brought  by  an  administrator, 
the  declaration  averred  the  taking  and  driving  away  of  a 
certain  cow  of  the  plaintiff's  intestate.  The  objection  was 
that  there  was  not  a  sufficient  allegation  of  property  in  the 
plaintiff;  that  it  was  not  the  case  of  a  title  defectively  stated 
and  which  was  cured  by  the  verdict,  but  one  in  which  no 
title  was  set  forth.  The  ground  of  objection  was  that  there 
could  be  no  property  in  a  deceased  person,  and  that  here  the 
allegation  was  of  the  taking  and  driving  of  a  "  cow  of  the 
plaintiff's  intestate."  It  was  held  that  the  averment,  though 
informal,  ^vould  be  presumed  upon  a  reasonable  construction 
to  be  of  a  taking  and  carrying  away  in  the   lifetime  of  the 

'  Phillips  V.  Hall,  8  Wend.  610. 

-  Ilitc  V.  Long,  G  Rand.  457.  '  1  Mete.  2(5. 

'  Sherman  v.  Elder,  1  Hilton,  178;  and  see  McKee  v.  Judd,  2  Kernan,  022. 

*  10  Mete.  82. 


592  KEMEDY  FOR  WRONGFUL  TAKING   OF   PROPERTY.     §  577. 

intestate,  as  the  property  was  alleged  to  be  in  her  and  not  in 
tlie  plaintiff,  wliicli  averment  was  sustained  by  the  evidence. 
But  the  court  intimated  a  doubt  whether  an  action  of  tres- 
pass, on  the  facts  as  stated,  could  be  maintained  by  the  ad- 
ministrator. If  the  declaration  allege  that  the  goods  are 
the  property  of  the  plaintiff,  it  need  not  aver  that  they  were 
in  his  possession  at  the  time  of  the  taking.^  And  where  the 
plaintiff  sets  up  title  by  purchase  under  a  dormant  execu- 
tion, he  need  not  aver  the  time  or  place  of  purchase,  nor 
directions  given  to  suspend  proceedings  under  the  execution, 
nor  that  such  directions  were  given  to  defraud ;  neither  is  it 
necessary  to  state  the  consideration  paid.^  * 

§  577.  A  count  in  trespass  for  injury  to  personal  prop- 
erty cannot  be  joined  to  a  count  for  injuring  the  plaintiff's 
health.-  In  Boerum  v.  Taylor,^  the  first  count  was  for  injur- 
ing a  certain  jug,  and  a  quantity  of  liquor  contained  in  the 
same,  by  putting  certain  noxious  substances  therein,  by  means 
of  which  the  jug  was  lessened  in  value,  and  the  liquor 
spoiled.  The  second  count  was  in  case,  for  injuring  the 
health  of  the  plaintiff.  After  setting  forthth  at  the  plaintiff' 
was  possessed  of  a  certain  other  jug,  and  a  certain  other 
quantity  of  liquor,  the  pleader  went  on  to  state,  in  substance, 
that  the  defendant  then  and  there,  wickedly  and  maliciously 
intending  to  administer  the  liquor  to  the  plaintiff',  and  cause 
him  to  drink  thereof,  did  put  the  noxious  substances  therein 
described  into  the  said  liquor,  which  rendered  the  same  un- 
wholesome, and  the  plaintiff,  being  ignorant  thereof,  drank 
of  the  same,  to  the  great  injury  of  his  health.  The  burden 
of  complaint  in  the  second  count  was  the  injury  to  the  health 
of  the  plaintiff,  and  the  mixing  of  the  noxious  substances 
with  the  liquor  was  spoken  of  merely  as  the  means  by  which 

'  Donaghe  v.  Roiulebonsh,  4  Munf.  251. 

'  Hickok  V.  Coates,  3  Wend.  419.  '  19  Conn.  123. 

*  In  an  action  of  trespass  for  driving  against  the  plaintiff's  cart,  it  is  an  im- 
material allegation  who  was  riding  in  it  (Howard  v.  Peete,  2  Chit.  315),  or  to 
whom  the  cart  belonged  at  tlie  time  of  the  accident  (Hopper  v.  Reeve.  1  Moore, 
407;  7  Taunt.  69S). 


§  578.  DECLARATION.  593 

the  defendant  inflicted  the  injury.     It  was  hehl  that  there 
was  clearly  a  misjoinder  of  counts. 

§  578.  Where  the  injury  is  alleged  to  have  been  com- 
mitted on  divers  days  and  times  within  a  specified  period  as 
well  as  on  a  day  particularly  named,  constituting  several  acts 
distinct  in  time,  but  identical  in  kind,  the  plaintiff  will  be 
entitled   to   recover    for    successive   trespasses.*     Folger  v. 
Fields  *  was  an  action  of  trespass  for   taking  and  driving 
away  sheep.     It   had   been   previously   admitted    that   the 
plaintiff  was  entitled  to  recover,   and,  according  to   agree- 
ment, the  defendants  had  been  defaulted  and  an  assessor 
appointed  to  assess  the  damages.     Upon  the  report  of  the 
assessor  now  made,  the  question  was  as  to  the  amount  for 
which  judgment   should  be  entered.     It  appeared  that  the 
defendants  were  joint  trespassers  in  taking  and  driving  away 
certain  sheep  belonging  to  the  plaintiff,  on  the  15th  day  of 
May,  and  also  in  taking,  driving  away,  and  impounding  cer- 
tain other  sheep  of  his  on  the  1 6th  day  of  the  same  month  ; 
and  that  some,  but  not  all,  of  the  defendants  were  joint  tres- 
passers in  taking  and    driving   away  certain  other  of  the 
plaintiff's  sheep  on  various  other  days,  during  the  time  speci- 
fied in  the  declaration.     It  was  stipulated  by  the  parties  that 
to  avoid  another  suit,  the  plaintiff  might  ofter  to  the  assessor 
"  evidence  of  the  improper  and  injurious  treatment  of  the 
sheep  after  they  were  impounded,"  and  that  he  should  assess 
such  damages  therefor  as   he  should  consider  to  be  proved. 
The  assessor  reported  what  sum  the  plaintiff  ought  to  re- 
cover upon  the  assumption  that   the  defendants  were  jointly 
liable  for  taking  away  and  impounding  the  whole  number 
of  sheep  mentioned.     The  defendants  insisted  that  damages 
could  be  assessed  against  them,  under  the  plaintifi^'s  declara- 
tion, for  only  one  single  act  of  taking ;  and  that,  by  force  of 
the  stipulation  contained  in  the  agreed  statement  of  facts, 

'  12Cush.  93. 

*  A  levy,  takinjT  away,  and  sale  of  property,  although  done  on  diflorcnt  days, 
constitute  a  single  trespass,  and  tiie  owiier  cannot  be   put  to  his  election  as  to 
for  which  he  will  bring  his  action  (Browning  v,  Skillmau,  4  Zabr.  351). 
ToL.  I.—  38 


594         REMEDY  FOR  WRONGFUL  TAKING  OF  PROPERTY.      §  579. 

their  liability  was  limited  to  tlie  taking  and  treatment  of 
those  sheep  only  which  were  actually  impounded.  It  was 
held  that  neither  of  these  objections  was  tenable."^ 

§  579.  The  allowance  or  refusal  by  the  court  of  an 
amendment  of  the  declaration  will  depend  upon  the  fact 
whether  or  not  the  plaintiff  proposes  to  introduce  any  new 
substantive  cause  of  action ;  that  is,  a  new  and  independent 
demand  ^ot  originally  claimed ;  or  whether  it  sets  out  in  a 
more  orderly,  intelligible,  and  formal  manner,  claims  sub- 
stantially made,  but  informally  stated  in  the  declaration  as 
first  framed.  In  the  latter  case  it  is  admissible;  in  the 
former,  not.  The  object  of  amendment  is  to  put  into  legal 
and  technical  form  that  which  was  informally  stated ;  and 
the  only  limit  is,  that  under  the  pretence  of  amendment,  new 


*  In  the  above  case,  the  lirst  objection  depended  upon  the  erroneous  assump- 
tion that  one  act  only  could  be  proved,  although  the  injury  complained  of  was 
alleged  to  have  been  committed  on  divers  days  and  times  within  a  specified 
period,  as  well  as  on  a  day  particularly  named.  The  court  said:  '"If  there  were 
any  doubts  whether,  according  to  the  more  rigid  rules  of  pleading  which 
formerly  prevailed,  such  a  mode  of  declaring  would  be  sufficient  to  enable  a 
party  to  recover  for  successive  and  repeated  trespasses,  there  would  seem  to  be 
no  occasion  for  any  now.  It  is  a  simple,  but  comprehensive  and  intelligible 
statement  of  several  acts,  distinct  in  time,  but  identical  in  kind,  all  constituting 
together  the  plaintiff's  cause  of  complaint.  It  can  subject  the  defendant  to  no 
possible  disadvantage,  since  he  may  always,  if  he  really  believes  it  material  to 
his  defense,  guard  himself  against  surprise,  and  ascertain  with  exactness  the 
charges  made  against  him  by  a  bill  of  particulars  which  is  now  uniformly  or- 
dered in  all  similar  cases." 

With  reference  to  the  other  objection,  the  object  and  effect  of  the  stipulation 
was  to  enlarge  and  increase,  rather  than  to  restrain  and  diminish,  the  liability  of 
the  defendants.  It  was,  therefore,  manifest  that  the  judgment  ought  to  embrace, 
in  addition  to  the  damages  for  which  the  defendants  were  otherwise  legally 
liable,  a  compensation  for  those  injuries  for  .which,  by  their  express  agreement, 
they  made  themselves  responsil)le. 

In  the  same  case,  the  plaintiff  contended  that,  by  the  default  of  the  defend- 
ants, taken  iu  connection  with  their  agreement  concerning  the  assessment  of 
damages,  the  defendants  must  be  held  to  have  admitted  that  they  took  and  im- 
pounded three  hundred  sheep,  being  the  whole  number  alleged  to  have  been 
carried  away;  and  that  he  was  therefore  entitled,  without  further  proof  of  loss, 
to  recover  compensation  for  the  injury  done  to  such  as  he  regained,  and  for  the 
value  of  so  many  more  as  would  make  with  those  regained  three  hundred  in  the 
whole.  But  this  would  give  to  the  agreement  a  construction  not  intended  by 
the  parties.  Except  in  relation  to  the  manner  in  which  compensation  should  be 
made  for  the  improper  and  injurious  treatment  of  the  sheep  while  confined  iu 
the  pound — which,  without  some  specific  provision,  the  assessor  could  not  prop- 
erly have  included  in  his  assessment — the  agreement  left  him,  in  all  other  re- 
spects, to  investigate  and  dispose  of  the  subject  of  damages  strictly  according  to 
law. 


§  580.  GROUNDS   OF  DEFENSE.  595 

and  distinct  substantive  causes  of  action  shall  not  be  intro- 
duced.* 

3.   Grounds  of  defense. 

§  580.  The  question  how  far  a  person  can  defend  an 
otherwise  indefensible  act,  by  showing  criminal  or  unlawful 
acts  on  the  part  of  the  party  injured,  has  of  late  years  been 
fully  discussed  in  the  courts  of  this  countiy  and  England. 
The  result  generally  reached  is,  that  no  man  can  set  up  a 

*  In  Bishop  v.  Baker,  19  Pick.  517,  the  question  was  whether  the  judge  be- 
fore whom  the  action  was  tried  decided  correctly,  in  permitting  the  plaintiff  to 
amend  by  adding  a  distinct  count  in  trespass  for  taking  and  carrying  away  the 
plaintiff's  goods,  when  the  only  count  originally  was  for  breaking  the  plaintiff's 
close  and  cariwing  away  the  goods.  It  was  held  that  he  did.  Shaw.  C.  J.,  said: 
''  By  a  long  course  of  practice,  it  is  settled  that,  under  the  genus  'trespass,'  the 
several  species  of  quare  claKSum  and  de  honis  asportatis  may  well  be  joined,  and. 
that,  if  it  were  now  decided  otherwise,  a  vast  number  of  judgments  would  be 
held  erroneous.  If,  therefore,  these  counts  had  been  originally  joined, there  could 
have  been  no  objection." 

In  an  action  brought  before  a  justice  of  the  peace  for  taking  away  the  plaint- 
iff's cow,  the  defendant  pleaded  specially  that  he  was  possessed  of  certain  land, 
and  that  the  cow  was  doing  damage  thereon,  and  he  impounded  her;  and  the 
plaintiff  replied  that  the  defendant  injured  the  cow,  and,  after  a  trial  on  that 
issue,  the  case  was  carried  by  appeal  to  the  Court  of  Common  Pleas.  In  that 
court  the  plaintiff  obtained  leave  to  amend,  putting  in  issue  the  title  to  the  close; 
and  it  was  held  that  the  allowance  of  the  amendment  was  error  (Kelley  v.  Taylor, 
17  Pick.  21Si.  By  the  court:  "We  think  it  ought  not  to  have  been  allowed. 
It  changed  the  character  of  the  cause.  The  action,  as  it  went  up  to  the  Common 
Pleas,  on  the  appeal  from  the  justice  of  the  peace,  presented  the  issue  of  an  in 
jury  to  the  plaintift''s  cow,  but  the  amendment  jiut  in  issue  the  plaintiff''s  title  to 
real  estate.  Now,  though,  if  the  action  had  been  commenced  in  the  Court  of 
Common  Pleas,  the  amendment  would  have  been  allowable;  yet,  acting  as  an 
appellate  court,  it  could  not  try  an  issue  which  might  not  have  been  tried  before 
the  justice.  If  the  judgment  of  the  justice  had  been  on  the  same  question  as 
that  of  the  Common  Pleas,  it  would  have  shown  that  he  had  no  jurisdiction. 
Further,  where  the  action  is  carried  up,  pursuant  to  the  statute,  upon  a  plea  of 
title  to  real  estate,  the  parties  have  a  right  to  appeal  from  the  judgment  of  the 
Common  Pleas  to  the  Supreme  Court.  But  the  effect  of  sustaining  the  amend- 
ment, would  be  to  withdraw  the  action  fr(mi  tlie  justice  by  apjjeal,  and  have  a 
trial  on  the  question  of  title  in  the  Common  Pleas,  and  then  no  appeal  to  the  Su- 
preme Court  would  be  allowable." 

Exceptions  will  not  lie  to  the  refusal  of  a  judge  to  allow  an  amendment,  un- 
less the  l)ill  of  exceptions  shows  that  he  ruled,  as  matter  of  law.  that  the  pro- 
posed amendment  was  one  which  could  not  be  allowed.  In  Gilman  v.  Emery, 
54  jNIaine,  400,  wliich  was  an  action  of  trespass  for  untying  the  plaintifl''s  horse, 
which  was  hitched  to  one  of  the  defendant's  shade  trees,  and  fastening  him  to 
a  hitching  i)ost,  it  appeared  that  the  horse  afterward  broke  loose  from  the  post 
and  ran  away,  and  broke  the  wagon.  The  plaintiff  having  simply  charged  the 
defendant  with  taking  and  carrying  away  the  horse  and  buggy,  he  moved,  in  the 
court  l)elow,  to  amend  the  declaration  by  inserting  a  new  count  cliarging  the 
defendant  with  negligence  in  not  hitching  the  horse  securely.  Leave  not  being 
granted,  and  tlie  plaintiff  having  excepted,  it  was  held  that  the  exceptions  could 
not  be  maintained. 


596         REMEDY   FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  580. 

public  or  private  wrong,  committed  by  another,  as  an  excuse 
for  a  wilful,  or  unnecessary,  or  even  negligent  injury  to  him 
or  his  property.^'     It  has  been  held,  for  instance,  that  pur- 
chase and  payment  made  for  liquors  sold  without  license,  to- 
gether with  the  possession  of  them,  are  sufficient  evidence  of 
title,  and  a  sufficient  possession  to  enable  the  purchaser  to 
maintain  an  action  of  trespass   for  taking  them  against  a 
mere  wrong-doer.     No  person  has  a  right  to  dispossess  another 
of  such  property  by  force,   and  if  done  without  right,  the 
person  doing  it  must  be  answerable  for  its  value  as  for  other 
property.     In  an  action  of  trespass  for  seizing  certain  liquors 
under  a  warrant,  for  which  a  writ  of  restitution  had  issued, 
the  defendant  offered  to  prove  that,  at  the  time  of  the  seizure, 
and  for  a  considerable  time  previous,  the  liquors  were  kept 
for  sale  by  the  plaintiff,  he  not  beiyg  licensed  to  sell,  and 
that  he  had  been  in  the  habit  of  selling  said  liquors  in  vio- 
lation of  law,  but  the  presiding  judge  ruled  that  such  testi- 
mony was  not  admissible.     It  was,    however,  held  by  the 
Supreme  Court,  that,  as  the  value  of  the  liquors  must  depend 
upon  their  status  at  the  time  of  seizure,  the  evidence  should 
have   been   received.^     Fuller  v.   Bean^  was   an    action   of 
trespass  against  a  deputy  sheriff  for  seizing  and  taking  away, 
by  virtue  of  an  attachment,  certain  liquors,  in  an  action  on 
a  note  brought  by  one  Felton  against  one  Fuller.     It  appeared 
that    the    liquors     originally     belonged    to     Fuller,    who 
was    selling   them    without    license,    and     that     becoming 
embarrassed,  and  owing  the  plaintiff,  who  was  his  brother,  a 
debt  exceeding  the  value  of  the  liquors,  he  sold  them  to  the 
plaintiff  who  immediately  took  possession  and  continued  the 
sale  of  them  without  license.     The  note  to  Felton  was  given 


'  Lord  V.  Chadbourne,  43  Maine,  429.  ""  10  Fost.  181. 

*  "This  principle  is  defended  on  the  grounds  of  morality  and  law,  and  it 
reaches  and  determines  a  great  variety  of  cases.  It  may  be  regarded  as  among 
those  condensed  maxims  or  statements  of  the  common  law,  which,  by  their 
simplicity  and  brevity,  and  more  than  all,  by  their  flexibility  and  almost  uni- 
versality, give  to  that  system  its  wonderful  adaptedness  to  the  varying  circum- 
stances of  particular  cases  as  they  arise,  and  to  the  changing  condition  of  so- 
ciety and  its  new  combinations  and  discoveries"  (Kent,  J.,  in  Hamilton  v.  God- 
ing,  infra). 


§  580.  GROUNDS  OF  DEFENSE.  597 

for  liquors  sold  without  license,  by  Feltou  to  Fuller.  The 
defendant  claimed  that,  as  the  plaintiff  had  no  license,  and 
as  he  bought  the  liquors  of  his  brother,  for  the  purpose  of 
selling  them  in  violation  of  law,  and  did  actually  so  sell 
them,  he  could  not  maintain  the  action ;  and,  it  having  been 
so  held  at  the  trial,  and  a  verdict  found  for  the  defendant, 
the  Supreme  Court  set  the  verdict  aside.  In  Hamilton  v. 
Goding^.the  defendant,  who  was  sheriff  of  the  county,  took 
and  carried  away,  by  his  deputy,  certain  liquors  belonging 
to  the  plaintiff.  Although  it  was  done  under  a  writ  against 
a  third  j)arty,  yet  the  defendant  set  up  no  defense  on  that 
ground,  but,  at  the  trial,  abandoned  all  attempt  to  justify 
the  taking  under  legal  process.  This  left  the  defendant 
simply  claiming  that  he  or  any  other  private  citizen  might 
lawfully  do  what  he  had  done,  because  the  articles  takeu 
were  not  property  protected  by  law.  The  case  presented  the 
naked  question  whether  intoxicating  liquors  owned  and  pos- 
sessed by  an  individual,  he  intending  to  sell  them  illegally 
at  some  time  thereafter,  were,  by  this  intention,  which  remained 
unexecuted,  so  entirely  put  out  of  the  protection  of  the  law, 
that  any  other  person  might  at  his  will  and  pleasure  carry 
away  or  destroy  them ;  and  it  was  held  that  they  were  not 
thus  outlawed,  either  in  consequence  of  their  nature  or  by 
reason  of  any  statute.'^     In  Ewings  v.  Walker,^  and  in  Ar- 

'  55  Maine,  419.  '9  Gray,  95. 

*  In  the  above  case  the  conrt,  in  the  course  of  a  very  elaborate  opinion,  said: 
"  The  commoa  law  does  not  arm  and  send  forth  single  knights  errant  to  vindicate 
its  authority  or  avenge  its  wrongs,  by  inflicting  punishment  on  supposed  of- 
fenders according  to  the  individual  opinion  and  judgment  of  the  avenger. 
Private  action  is,  as  a  general  rule,  confined  to  private  wrongs,  and  then  only  to 
be  used  when  it  becomes  necessary  to  prevent  or  remove  imminent  and  present 
obstructions  to  the  exercise  of  private  right.  Many  recent  English  cases  are 
found  which  illustrate  and  adopt  these  views.  It  is  held  that  it  is  not  enough 
for  a  defendant  to  show  an  illegal  act  or  intent  on  the  part  of  the  plaintiff,  even 
if  it  constitutes  a  public  nuisance.  Want  of  care  in  driving,  for  instance,  on 
the  highway,  cannot  be  excused  by  proving  that  plaintiff's  animal,  which  was 
injured,  was  illegally  there,  or  that  the  plaintiff  was  driving  on  the  wrong  side 
of  the  way  contrary  to  the  statute.  The  rule  clearly  to  be  deduced  from  these 
cases  is,  that  the  fact  of  the  existence  of  a  nuisance  created  by  one  party,  or 
any  illegal  doing  on  his  part,  will  not  give  a  right  of  action,  or  be  regarded  as 
a  defense  where  there  has  been  a  want  of  due  care  to  avoid  injury,  and  where 
the  other  party  has  voluntarily,  and  with  no  other  excuse,  injured  or  destroyed, 
or  converted  the  property  "  (citing  Davies  v.  Mann,  10  M.  &  W.  540;  Bridge  v. 


598         EEMEDY  FOR  WRONGFUL   TxVKIKG  OF   PROPERTY.     §  581. 

tbur  V.  Flanders/  wliere  liquors  liad  been  seized  by  an  officer 
acting  under  a  regular  warrant,  the  officer  failing  to  show  a 
legal  right  to  take  and  hold  part  of  the  liquors  seized, 
undertook  to  defend  as  to  such  part,  by  showing  that  all  the 
liquors  taken  were  held  by  the  owner  with  intent  to  sell 
them  in  violation  of  law,  and,  therefore,  that  no  action  could 
be  maintained  for  their  value.  The  court  overruled  the  point 
made,  and  held  that  the  officer  could  not  thus  protect  him- 
self. These  decisions  were  made  under  a  law  of  Massachu- 
setts which  declared  that  no  action  should  be  maintained 
against  any  officer  for  seizing,  detaining  or  destroying  liquor, 
or  the  vessels  in  which  it  was  kept,  unless  such  liquor  and 
vessels  were  legally  kept  by  the  owner.  It  was  held  that 
the  statute  did  not,  in  its  terms,  protect  the  officers  in  the 
foregoing  cases ;  and  further,  that  if  the  statute  had  so  un- 
dertaken to  leave  the  owner  remediless  for  injury  to  prop- 
erty, and  with  no  right  to  be  heard,  the  coui't  would  not 
hesitate  to  say  that  it  was  a  clear  violation  of  the  bill  of 
rights.* 

§  581.  An  action  for  the  taking  and  carrying  away  of 
personal  property  under  an  attachment  against  a  third  per- 
son, will  not  be  barred  by  a  recovery  in  a  suit  brought  by 
the  same  plaintiif  for  the  same  property  commenced  before  the 
actual  removal  of  the  property.  '^  f     A  recovery  in  reple\an, 

G.  Junction  R.  R.  Co.  3  M.  &  W.  244 ;  Mayor  of  Colchester  v.  Brooke,  7  Q.  B. 
339;  Bateman  v.  Bluck,  18' Ad.  &  El.  :N'.  S"  870;  Dimes  v.  Petley,  15  Q.  B.  276). 

'  10  Gray,  107.  '  Clark  v.  Harrington,  4  Yt.  69. 

*  It  has  been  held  that,  at  common  law,  it  is  not  lawful  for  any  and  all  per- 
sons to  al:)ate  a  common  nuisance,  merely  because  it  is  a  common  nuisance,  al- 
though the  rule  has  sometimes  been  stated  in  terms  so  general  as  to  give  some 
countenance  to  this  suppositicm;  and  further,  that  the  power  has  not  been  given 
to  individuals,  without  process  of  law.  to  vindicate  public  right ;  but  that  the 
only  power  thus  given  to  the  private  citizen,  is  to  remove  or  abate  a  common 
nuisance  when  his  individual  right  to  act  is  obstructed  or  prevented  by  such 
nuisance.  It  has  been  also  held  that  spirituous  liquors  are  not  of  themselves  a 
common  nuisance,  and  if  a  nuisance  at  all,  are  made  such  by  the  statute  which 
provides  a  mode  for  their  destruction ;  that  when  a  statute  declares  that  to  be  a 
common  nuisance  which  was  not  one  before,  and  specifies  and  directs  the  mode 
of  abating  it,  that  is  the  only  mode  which  can  be  pursued,  and  that  it  is  not 
lawful  for  any  private  person  to  destroy  the  property  by  way  of  abatement  of  a 
common  nuisance  (Hamilton  v.  Goding,  siq^ra). 

t  In  Clark  r.  Harrington,  sirpra,  the  defendant  attached  the  property  in 
question  on  the  loth  of  April,  but  did  not  remove  it.     The  plaintiff  brought  her 


§  581.  GROUNDS   OF   DEFENSE.  599 

however,  with  a  return  of  the  goods,  is  a  bar  to  au  action  of 
trespass  for  the  same  goods,  although  the  damages  awarded 
in  the  replevin  suit  have  not  been  paid.  ^  So,  likewise,  where 
a  judgment  in  replevin  is  obtained  against  one  of  two  joint 
wrong-doers  for  a  part  of  the  property  taken,  it  will  be  a  bar 
to  an  action  afterward  brought  against  both,  for  the  same 
trespass,  unless  it  be  shown  that  the  defendants  destroyed, 
concealed,  or  sold  a  portion  of  the  property  so  that  it  could 
not  be  replevied.^*     But  a  recovery  in  replevin  against  the 


action  for  it  on  the  17th  of  April,  the  court  to  be  held  on  the  27th  of  the  same 
mouth.  After  the  commencement  of  the  action  and  before  the  day  of  trial,  the 
defendant  carried  away  the  property.  The  plaintiff  failed  in  the  first  action  be- 
cause it  was  brought  before  there  was  any  actual  carrying  away  of  the  property ; 
and  for  this  carrying  away,  the  jiresent  action  was  brought.  The  court  said : — 
"The  defense  set  up  in  this  case  is  so  technical,  and  savors  so  little  of  equity, 
that  it  ought  not  to  prevail  until  made  out  in  the  most  conclusive  manner.  And 
the  act  of  carrying  away  of  the  property  now  complained  of,  may  be  viewed  as 
distinct  from  the  first  attachment.  Suppose  the  defendants  had  let  the  property 
remain  as  it  was  till  after  the  trial  in  the  plaintiff's  first  suit,  and  the  plaintiff 
failed  to  recover  for  want  of  proof  that  the  defendants  had  intermeddled  to  her 
injury,  and  when  that  trial  was  over,  the  defendants  carried  off  the  property, 
could  it  be  suspected  that  the  plaintift*  was  left  without  remedy  for  this  last  tak- 
ing ?  Or  if  the  plaintiff  had  recovered  nominal  damages  for  the  first  taking, 
and  that  only  because  the  property  yet  remained  in  the  possession,  and  under 
the  control  of  the  plaintiff',  could  the  defendants,  after  that,  carry  away  the 
property,  and  the  plaintift"  be  left  without  remedy  ?  The  actual  carrying  away, 
must  be  literally  a  continuance  of  the  first  taking,  or  so  unjust  consequences  must 
not  follow." 

'  Karr  v.  Barstow,  24  111.  580.  '  Bennett  v.  Hood,  1  Allen,  47. 

*  In  Bennett  v.  Hood  et  al.  supra,  it  appeared  that  the  two  defendants  by  a 
single  tortious  act,  carried  away  certain  daguerreotype  apparatus,  and  that  the 
plaintiff  had  previously  obtained  a  judgment  in  replevin  therefor  against  Ben- 
nett, one  of  the  defendants,  and  nominal  damages  for  the  detention;  and  it  was 
objected  that  this  judgment  in  replevin  was  a  bar  to  the  present  action.  Chap- 
man, J. : — "The  court  are  of  opinion  that  this  objection  is  valid.  If  the  defend- 
ants had  destroyed,  concealed,  or  sold  a  portion  of  the  propertv,  so  that  it  could 
not  be  replevied,  the  plaintiff'  might  have  had  some  reason  to  contend  that  he 
had  a  right  to  replevy  that  part  of  the  property  that  could  be  found,  and  to 
maintain  a  separate  action  to  recover  the  value  of  that  which  h;id  been  thus  sev- 
ered from  it.  But  we  have  no  occasion  in  this  case  to  decide  that  question. 
The  defendant  Bennett  stands  upon  the  maxim  '  JSfeino  debet  lis  vexari  iwo  una  et 
eadem  causa;''  and  in  this  action,  he  is  a  second  time  sued  for  a  single  and  indi- 
visible act.  As  to  him,  at  least,  it  is  an  unnecessary  multiplication  of  actions. 
Tlie  plaintiff  having  obtained  a  judgment  in  replevin  against  Bennett  for  a  part 
of  the  property,  and  also  a  judgment  for  nominal  damages,  the  court  are  of 
opinion  that  he  cannot  maintain  the  present  action  against  Bennett  and  Hood 
jointly  for  further  damages  for  tlie  taking  and  detention  of  the  whole  property, 
the  whole  having  been"  restored  to  him.  The  principle  insisted  on  by  the 
plaintiff,  that  au  action  will  lie  against  each  of  several  cotrespassers,  and  that 
the  plaintifl"  may  elect  de  meliorihus  damnis,  is  not  applicable  to  the  present  case. 
The  authorities'on  tlie  point  are  collected  in  the  note  to  Broome  v.  Wooton, 
Yelv.  Am.  ed.  67.     They  do  not  decide  that  after  obtaining  a  judgment  in  re- 


GOO         REMEDY   FOR  WRONGFUL  TAKING  OF   PROPERTY.     §  582. 

purchaser  of  goods  sold  by  an  officer,  will  not  bar  an  action 
of  trespass  against  the  officer  for  the  original  taking.  The 
owner  of  the  goods  having  been  deprived  of  their  use  by 
their  seizure  and  detention  previous  to  the  sale,  such  injury 
would  not  be  compensated  by  success  in  the  replevin  suit.  ^ 

§  582.  -There  is  some  conflict  of  authority  as  to  whether 
in  an  action  of  trespass  for  taking  and  carrying  away  goods, 
a  judgment  in  trover  for  the  value  of  the  goods  without  sat- 
isfaction, against  one  of  two  joint  wrong-doers,  will  consti- 
tute a  defense.  "^^    There  are  technical  reasons  and  legal  decis- 


plevin  against  one  trespasser,  be  may  afterwards  sue  the  other  for  damages. 
Still  less  do  they  decide  that  he  may  afterwards  maintain  a  joint  action  against 
both  "  (citing  Farrington  v.  Pavne,  15  Johns.  432;  Bates  v.  Quattlebom,  2  Nott 
&  McCord,  205;  Fetter  v.  Beale,  1  Salk.  11). 

'  Nagle  V.  Mullisou,  34  Penn.  St.  R.  48. 

*  In  Broome  v.  Wootou,  reported  Yelv.  67 ;  Cro.  Jac.  73  ;  Moore,  762,  the 
suit  was  trover  for  plate.  Plea,  former  recovery  of  judgment  against  J.  S.  for 
the  same  plate.  Though  the  judgment  was  not  satisfied,  it  was  agreed  that  it 
was  a  good  bar.  Popham,  in  this  case,  said:  "  If  one  hath  judgment  to  recover 
in  trespass  against  one,  and  damages  are  certain,  although  he  be  not  satisfied,  he 
shall  not  have  a  new  action  again  for  this  trespass.  By  the  same  reason,  e  contra, 
if  one  hath  cause  of  action  against  two,  and  obtain  judgment  against  one,  he 
shall  not  have  remedy  against  the  other;  and  the  difference  betwixt  this  case 
and  the  case  of  debt  and  obligation  against  two,  is,  because  there  every  of 
them  is  chargeable  for  the  entire  debt,  and,  therefore,  a  recovery  against  one  is 
no  bar  against  another,  till  satisfaction."  He  here  distinguishes  between  a  tort 
by  several,  and  an  obliiration  joint  and  several,  where  each  is  severally  liable  for 
the  entire  debt,  and  upon  his  several  promise.  The  authority  of  this  case  is 
impliedly  recognized  in  Lacoa  v.  Barnard,  Cro.  Car.  35,  which  was  a  suit  in 
trover  for  certain  sheep.  Plea,  that  the  plaintiff  had  recovered  judgment  in  an 
action  of  trespass,  aMeging  a  conversion  of  the  same  sheep,  and  judgment  still 
in  force.  To  avoid  the  bar  of  this  judgment,  the  plaintiff  replied  that  the  dam- 
ages were  only  recovered  for  the  taking  and  detention,  and  not  for  the  conver- 
sion. It  was  conceded  that  if  damages  had  been  given  for  the  conversion,  and 
judgment  therefor,  the  plaintiff  would  be  barred  ;  but  as  the  judgment  was  not 
for  tliat,  the  replication  was  sufficient. 

The  learned  editor  of  Yelverton,  in  a  note  to  the  case  of  Broome  v.  Wooton, 
says  that  the  point  decided  in  that  case  has  never  been  otherwise  decided.  There 
is  no  case — we  find  none — in  which  it  has  been  expressly  held  that  a  judgment 
against  one  joint  trespasser,  without  satisfaction,  will  not  bar  a  suit  against  the 
other.  There  are  cases,  where  the  judgment  had  been  satisfied,  in  which  it  was 
held  that  judgment  and  satisfaction  will  bar,  and  where  stress  is  laid  upon  the 
fact  that  the  judgment  was  satisfied.  These  cases  are  consistent  with  the  case 
in  Yelverton,  and  the  doctrine  announced  by  Baron  Parke,  and  afterward  by 
Jervis,  C.  J.  Judgment  and  satisfaction  would  bar  another  suit  against  any 
party  jointly  liable.  It  would  also  bar  every  concurrent  remedy  for  the  same 
thing,  even  when  no  joint  action  would  lie.  But  this  is  not  inconsistent  with 
the  idea  that  a  judgment  against  one  of  two  persons  jointly  guilty  will,  with- 
out payment,  bar  any  further  suit  against  the  otlier. 

The  authority  of  the  case  of   Broome  v.  Wooton  is  recognized  by  Baron 


§  582.  GROUNDS   OF   DEFENSE.  GOl 

ions  ill  support  of  tlie  doctrine  that  sucli  judgment,  if  execu- 
tion be  taken  out  thereon,  is  to  be  regarded  as  a  bar.  With 
this  qualification,  the  cases,  if  not  entirely  reconcileable,  will 
be  found  more  consistent  with  each  other.  ^ " 


Parke  in  delivering  judgment  in  King  v.  Hoare,  13  M.  &  W.  494.  The  case 
was  one  of  joint  contract,  in  which  the  plea  was  by  one  of  the  debtors  of  a 
former  recovery  against  the  other  for  the  same  debt.  He  said:  "  If  there  be  a 
breach  of  contract,  or  M'rong  done,  or  any  otlier  cause  of  action  by  one  against 
another,  and  judgment  be  recovered  in  a  court  of  record,  the  judgment  is  a  bar 
to  the  original  cause  of  action,  because  it  is  reduced  to  a  certainty,  and  the 
object  of  the  suit  attained,  so  far  as  it  can  be  at  that  stage ;  and  it  would  be 
useless  and  vexatious  to  subject  the  defendant  to  another  suit  for  the  purpose  of 
obtaining  the  same  result.  Hence  the  legal  maxim — transit  in  rem  judicatam ; 
the  cause  of  action  is  changed  into  matter  of  record  which  is  of  a  higher  nature, 
and  the  inferior  remedy  is  merged  in  the  higher.  This  appears  to  be  equally 
true  when  there  is  but  one  cause  of  action,  whether  it  be  against  a  single  person 
or  many.  The  judgment  of  a  court  of  record  changes  the  nature  of  that  cause 
of  action,  and  prevents  its  being  the  subject  of  another  suit ;  and  the  cause  of 
action  being  single,  cannot  afterward  be  divided  into  two."  Referring  to,  and 
commenting  upon,  the  case  of  Broome  v.  Wooton  as  one  that  decides  that  if 
two  commit  a  joint  tort,  the  judgment  against  one  is,  of  itself,  without  execu- 
tion, a  sufficient  bar  to  an  action  against  the  other  for  the  same  caitse,  he  said : 
"  We  do  not  think  that  the  case  of  a  joint  contract  can  be  distinguished  in  this 
respect  from  a  joint  tort.  There  is  but  one  cause  of  action  in  each  case. 
'  Whether  the  action  is  brought  against  one  or  two,  it  is  for  the  same  cause  of 
action.'  The  only  diflerence  is,  that  if  one  joint  debtor  be  sued  alone,  he  may 
plead  in  abatement  the  non-joinder  of  his  co-contractor,  which  a  joint  tort-feasor 
cannot  do.  This  diflerence  arises,  not  from  the  fact  that  there  is  more  than  one 
cause  of  action,  but  that  one  joint  wrong-doer  cannot  call  upon  the  other  for 
contribution  to  the  damages  reaovered." 

'  White  v.  Philbrick,  5  Maine,  147;  Hunt  v.  Bates,  7  R.  I.  317;  Sanderson 
V.  Caldwell,  2  Aik.  195;  Sheldon  v.  Kibbe,  3  Conn.  214;  Osterhout  v.  Roberts, 
8  Cowen,  43 ;  Livingston  v.  Bisiiop,  1  Johns.  290 ;  Sharp  v.  Gray,  5  B.  Mon.  4 ; 
Jones  V.  McNeil,  2  Bailey,  466 ;  Walker  v.  Farnsworth,  2  Kent's  Com.  388,  note 
c;  ante^  §  61. 

*  In  the  case  of  Buckland  v.  Johnson,  6  J.  Scott,  80,  Eng.  C.  L.  145,  the 
goods  of  the  plaintiff  had  been  wrongfully  converted  by  the  defendant  and  his 
son  jointl}',  by  selling  them.  The  proceeds  of  the  sale  were  received  by  the  de- 
fendant alone.  The  suit  against  the  defendant  was  for  the  moneys  received  for 
the  sale  of  the  goods,  as  money  had  and  received  to  the  plaintiff's  use,  and  he 
was  also  charged  with  converting  the  plaintiff's  goods.  The  plaintiff  had  sued 
the  son  alone,  and  recovered  £100  as  the  value  of  the  goods  converted,  but  had 
not  obtained  satisfaction.  This  matter  was  pleaded  by  the  defendant,  and  the 
court  adjudged  it  a  sufficient  answer.  Jervis,  C.  J.,  in  delivering  judgment, 
said:  "The  authorities  show,  that  if  the  son  had  received  this  money,  as  well 
as  converted  the  goods,  and  Buckland  had  sued  him  in  trover,  and  obtained 
judgment  against  him,  though  it  had  produced  no  fruits,  that  judgment  wottld 
have  been  a  bar  to  another  action  against  him  for  money  had  and  received ;  upon 
the  same  principle,  if  two  jointly  convert  goods,  and  one  of  them  receives  the 
proceeds,  you  cannot,  after  a  recovery  against  one  in  trover,  have  an  action 
against  the  other  for  the  same  conversion,  or  an  action  for  money  had  and  re- 
ceived, to  recover  the  value  of  the  goods  for  which  a  judgment  has  already 
passed  in  the  former  action."  He  quotes  and  adopts  the  reasoning  of  Barou 
Parke,  in  King  V.  Hoare,  and  says,  in  conclusion:  "The  right  of  action  is  merged 
in  the  judgment.  It  is  the  judgment  that  disposes  of  the  matter,  and  not  the  pay- 


G02         REMEDY   FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  583. 

§  583.  Where  in  an  action  for  injuries  committed  on  two 
different  occasions,  the  trial,  on  motion  of  the  defendant,  pro- 
ceeds as  to  one,  a  verdict  for  the  plaintiff  therein  will  not  bar  a 
second  action  for  the  other  injury.  In  an  action  of  trespass 
for  injuring  two  horses  of  the  plaintiff,  one  of  the  horses 
having  beeu  injured  on  one  day  and  the  other  horse  on 
another  day,  the  plaintiff,  on  motion  of  the  defendant, 
elected  to  proceed  for  the  injury  done  to  the  horse  that  sur- 
vived, and  a  verdict  for  the  damages  thereby  sustained  was 
found  for  the  plaintiff.  The  plaintiff'  in  the  first  action  hav- 
ing died,  his  executors  afterwards  brought  an  action  for  the 
injury  done  to  the  horse  that  was  killed,  and  the  defendant 
pleaded  a  former  recovery  for  the  same  trespass,  to  which 
the  plaintiff"  replied,  setting  forth  the  foregoing  facts.  It  was 
held  that  the  plaintiff'  was  entitled  to  recover,  it  being  mani- 
fest fi'om  the  facts  disclosed  by  the  replication  that  his  testa- 
tor never  received  any  compensation  for  the  injury  last  com- 
plained of,  and  that  it  was  upon  the  motion  of  the  defendant 


ment."  He  had  before  said  ;  "  The  whole  fallacy  of  the  plaintiff's  reasoning,  is  his 
losing  sight  of  the  fact,  that  by  the  judgment  in  the  action  of  trover,  the  property 
in  the  goods  was  changed  by  relation,  from  the  time  of  conversion,  and  that,  con- 
sequently, the  goods  from  that  moment  became  the  goods  of  the  son,  and  when 
the  defendant  received  the  proceeds  of  the  sale,  he  received  the  son's  money — . 
the  property  of  the  goods  being  then  in  him."  Maule,  J.,  in  the  same  case,  said 
of  the  plaintiff':  "Having  his  election  to  sue  in  trover  for  the  value  of  the  goods, 
or  for  the  proceeds  of  the  sale,  as  money  liad  and  received,  he  elected  the  former, 
and  has  obtained  judgment.  He  has,  therefore,  got  what  the  law  considers 
equivalent  to  payment,  viz. :  a  judgment  for  the  value  of  his  goods.  The  cir- 
cumstance that  the  present  defendant  was  a  joint  converter,  or  a  stranger,  makes 
no  difference.  If  he  were  a  stranger,  the  plaintiff,  having  once  recovered  in  re- 
spect of  the  same  goods,  cannot  recover  again  the  same  thing  against  anybody 
else.  There  is  an  end  of  the  transaction.  Having  recovered  a  judgment,  his 
remedy  is  altogether  gone.     His  claim  was  satisfied  as  against  all  the  world." 

In  Adams  v.  Broughton,  Andrews,  18,  which  was  also  an  action  of  trover, 
the  plea  was  a  former  judgment  in  trover,  against  one  Mason,  for  the  same  goods. 
The  court  said :  "  The  property  in  the  goods  was  altered  by  the  judgment.  The 
damages  recovered  are  the  price  of  the  goods,  and  Mason  has  the  same  property 
as  the  plaintiff  had,  and  this  against  all  the  world.  The  plaintiff  cannot  say 
the  goods  are  his."  The  damages  in  this  case,  were  for  the  conversion  of  the 
^oods  to  the  use  of  Mason,  and  their  entire  loss  to  the  plaintiff.  TJiis  was  the 
cause  of  action  merged  in  the  judgment.  It  was  not  for  the  goods  themselves, 
but  a  suit  to  recover  their  value,  and  assumed  that  they  were  no  longer  the  goods 
of  the  plaintiff,  but  had  wrongfully,  it  is  true,  but  actually,  by  the  conversion, 
become  the  sToods  of  the  defendant. 


§§  584,  585.  PLEA.  003 

that  the  injury  now  charged   was   not    submitted   to    the 
jury.i  * 

4.  Plea. 

§  584.  The  defendant  may  deny  the  taking,  or  he  may 
justify  it  on  the  ground  of  his  own  individual  right  to  the 
property,  or  his  authority  as  an  agent  of  the  true  owner. 
He  may  not,  unless  he  sees  fit,  invoke  his  official  character  at 
all,  or  he  may  do  so,  and  plead  that  as  an  officer  having  legal 
precepts  against  the  plaintiff  himself,  or  any  third  party,  he 
took  the  goods.  In  the  latter  case,  the  question  to  be  tried 
would  be  the  title  of  such  third  party  as  against  the  plaint- 
iff's title.2 

§  585.  A  plea  is  good  which  substantially,  though  in- 
formally, sets  out  the  defense.  In  Burdick  v.  Worral,^ 
which  was  an  action  for  driving  against  and  injuring  the 
plaintiff's  carriage,  the  plea  averred  that  the  defendant,  just 
before  the  collision,  drove  his  wagon  on  the  right  side  of 
the  center  of  the  road,  so  as  to  permit  the  carriage  in  which 
the  plaintiff'  was  riding  to  pass  without  interference,  but 
that  the  j)laintiff's  carriage  was  not  kept  and  seasonably 
turned  to  the  right  of  the  center  of  the  road,  and  thereby 
they  came  in  contact  with  each  other  by  the  negligent  and 
unlawful  manner  in  which  the  plain  tift^'s  carriage  was  driven, 
which  caused  the  damage.  If  the  defendant  had  averred 
directly  that  the  plaintiff'  was  carelessly  driving  on  the 
wrong  side  of  the  road,  and  thereby  caused  the  accident, 
there  could  have  been  no  doubt  as  to  tlie  sufficiency  of  the 
plea.  The  objection  to  it  was,  that  the  averment  was  not 
positive  that  the  plaintiff^'s  carriage  was  on  the  wrong  side 
of  the  highway,  but'that  the  fact,  if  it  existed,  was  left  to  be 


*  Snider  v,  Croy,  2  Johns.  237. 

"^  Dane  v.  Gilmore,  49  Maine,  17;). 

^  4  Barb.  596.     And  see  Earing  v.  Lansingh,  7  Wend.  185. 

*  In  this  case  it  was  held,  that  as  the  form  of  the  replication  was  defective, 
being  argumentative,  instead  of  traversing  and  denying  a  former  recovery  for 
the  same  matter,  it  might  be  amended  on  payment  of  costs. 


604         REMEDY  FOR  WRONGFUL  TAKING  OF   PROPERTY.     §  585. 

inferred.  It  was  held,  that  as  the  plea  substantially,  al- 
though informally,  averred  that  the  defendant  was  on  the 
right  side  and  the  plaintiff  on  the  wrong  side  of  the  highway, 
it  was  certain  to  a  common  intent,  and  that  the  alleo-ations 
made  out  priyna  facie  a  valid  defense.  ^  But  where  the 
defendant  is  an  infant,  unless  he  aver  that  the  injury  com- 
plained of  occurred  through  his  unskilfulness,  want  of  know- 
ledge, discretion  and  judgment,  the  court  are  hound  to  pre- 
sume that  the  injury  was  wilful.^ 


'  Campbell  v.  Stakes,  2  Wend.  137. 

*  In  Burdick  v.  Worral,  mpra^  the  replicatioa  stated  that  the  traveled  part 
of  the  highway  was  fifty  feet  wide;  that  the  plaintiff  was  proceeding  easterly  at 
the  rate  of  a  mile  in  twelve  minutes,  and  the  defendant  westerly  at  the  rate  of  a 
mile  in  four  minutes;  that  the  plaintiff's  wagon  was  within  one  foot  of  the  north 
(left)  side  of  the  traveled  part  of  the  highway;  that  there  was  a  space  of  the 
traveled  road  fifteen  feet  wide  between  the  plaintiff's  w-agon  and  the  center,  over 
which  the  defendant  might  have  passed  without  interference  or  interruption, 
and  that  the  defendant,  just  before  the  wagons  came  in  contact,  drove  his  wagon 
across  such  last  mentioned  space,  and  unnecessarily  ran  against  the  plaintiff's 
carriage,  and  that  the  collision  happened  without  any  carelessness  on  her  part  or 
on  the  part  of  her  driver.  The  question  was,  whether  these  allegations  satisfac- 
torily answered  the  special  plea,  and  thereby  sustained  the  declaration.  It  was 
held  that  the  replication  Avas  defective  in  not  setting  forth  some  fact  to  show 
that  the  plaintiff'  or  her  driver  was  not  careless  in  being  on  the  wrong  side  of  the 
highway,  or  averring  that  the  defendant  intentionally  and  unnecessarily  inflicted 
the  injury.  The  court  said:  "  It  is  admitted  that  the  plaintiff  was  on  the  wrong- 
side  of  the  road.  That  unexplained  would  indicate  carelessness  on  her  part. 
The  general  allegation  that  there  was  none  is  not  sytficient  to  rebut  tlie  inference 
without  the  averment  of  some  fact  to  support  it.  If  there  was  a  valid  excuse  for 
her  being  there,  such  as  that  the  highway  was  impassable  on  the  other  side,  or 
that  she  was  about  alighting  at  home,  or  on  a  visit  at  the  place  where  she  was, 
that  should  appear  affirmatively.  From  anything  that  is' said,  it  does  not  appear 
but  that  she  was  wrongfully  and  negligently  on  the  left  side  of  the  highway.  If 
so,  and  the  defendant  had  even  been  negligent,  although  that  is  not  directly 
averred,  but  may  possibly  be  inferred  from  his  traveling  at  so  rapid  a  rate,  the 
jjlaintiff"  could  not  recover.  The  rule  is  well  settled  that  if  the  plaintiff's  neg- 
ligence in  any  way  concurs  in  jsroducing  the  injury  whicli  would  not  have 
happened  without  it,  the  defendant  is  entitled  to  judgment.  Certainly,  if  the 
plaintiff  had  prudently  kept  on  the  right  side  of  the  road  no  injury  would  have 
occurred.  The  plaintiff's  negligence,  however,  would  not  have  justified  any  in- 
tentional and  unnecessary  damage  by  the  defendant.  If  he  crossed  the  space 
between  the  plaintiff's  wagon  and  the  center  with  the  intention  of  producing  the 
collision,  he  should  be  made  to  pay  the  damage.  But,  then,  such  intention 
should  have  been  expressly  averred.  It  cannot  be  inferred  simply  from  the  fact 
of  his  driving  in  that  direction.  He  may  have  supposed,  and  from  what  is  al- 
leged he  had  a  right  to  suppose,  until  he  came  too  near  to  avoid  the  collision, 
that  the  plaintiff"'s  driver  intended  to  comply  with  the  law.  Persons  often  drive 
on  the  public  highway  at  a  rapid  rate  until  they  are  near  each  other,  in  such  a 
course  that  it  would  be  impossible  to  escape  from  injury  unless  each  turns  as  the 
law  directs.  In  such  cases  the  safety  of  men's  lives  often  depends  upon  the 
prompt  observance  of  the  rule  to  keep  to  the  right." 


§  58G.  PLEA.  G05 

§  586.  The  general  issue  will  operate  as  a  denial  of  the 
defendant's  having  committed  the  trespass  alleged/  but  not 
a  release  of  the  trespass,  or  any  other  matter  which  does  not 
show  the  takino;  lawful.^  *  In  Fuller  v,  Rounceville,*^  which 
was  an  action  for  taking  and  carrying  away  the  plaintiff's 
sleigh,  the  defendant  offered  in  evidence  a  mortgage  prior  in 
point  of  time  to  the  title  of  the  plaintiff,  and  proof  of  peace- 
able j)ossession  taken  of  the  property  mortgaged  by  the  de- 
fendant as  agent  of  the  mortgagee,  the  taking  possession  in 
that  manner  being  the  act  complained  of.  It  was  held,  that 
as  the  matters  of  defense  relied  on  were  a  direct  denial  of 
the  allegation  of  property  in  the  plaintiff,  as  well  as  of  all 
right  of  possession  in  him  as  against  the  defendant  at  the 
time  of  the  trespass,  they  were  admissible  under  the  general 
issue.  But  in  an  action  of  trespass  for  carrying  away  a 
quantity  of  rails  which  had  been  previously  scattered  by  the 
plaintiff'  along  the  line  of  land  occupied  by  the  defendant  in 
order  to  construct  of  them  a  fence,  to  which  the  general  issue 
was  pleaded,  it  was  held,  that  upon  proof  that  the  defendant 
took  the  rails  from  where  they  were  laid,  and  piled  them  in 
a  different  part  of  the  lot,  the  plaintiff,  was  entitled  to  recover 
their  value ;  that  if  the  defendant  had  desired  to  show  in 
what  capacity  he  was  occupying,  or  that  the  rails  were  un- 
lawfully placed  upon  the  land,  or  that  they  were  the  occasion 
of  injury  to  it,  and  he  had  removed  them  to  prevent  such  in- 
jury, or  had  taken  them  by  the  license  of  the  plaintiff,  such 
facts  should  have  been  pleaded.*  The  defendant  cannot  in- 
troduce under  the  general  issue  evidence  to  show  that  the 
act  complained   of  was   done   by  virtue  of  legal  process.^ 

'  3  Nev.  &  M.  9;  5  B.  «&  Adol.  9;  10  Bing.  471;  2  C.  &  M.  23;  2  Dowl.  P.  C. 
325. 

'  Wilcox  V.  Sherwin,  1  Chipman,  72.  =>  9  Fost.  554. 

'  Strong  V.  Hobbs,  20  Vt.  185.  =•  Buttcrworth  v.  Soper,  13  Johns.  443. 

*  In  an  action  of  trespass  for  killing  a  slave,  it  was  proved  under  the  general 
issue  that  the  slave  was  sliot  and  killed  by  the  defendant  while  he  was  trying  to 
retake  him  as  a  runaway  at  the  request  of  the  plaintiff.  A  verdict  having  been 
rendered  for  the  defendant,  a  new  trial  was  ordered,  with  leave  to  the  defendant 
to  plead  specially,  unless  he  should  enter  satisfaction  for  the  costs  (Bradley  v. 
Flewitt,  6  Rich.  69). 


GOG         REMEDY   FOR   WRONGFUL   TAKING   OF   PROPERTY.     §  586. 

Drake  v.  Barrymore  ^  was  an  action  of  trespass  brouglit  by 
Barrymore  in  the  court  below  against  Di-ake  and  two  other 
persons  for  taking  and  carrying  away  the  plaintiff's  hog,  "to 
which  the  defendants  pleaded  the  general  issue.  On  the 
trial,  the  defendants  offered  to  prove  that  two  of  the  defend- 
ants were  trustees  of  a  school  district,  and  had  regularly 
issued  a  "warrant  to  Drake  as  collector  of  the  district,  and 
that  he  took  the  hog  under  that  warrant ;  but  it  was  held 
that  the  justification  under  the  collector's  w^arrant  could  not 
be  admitted  under  a  plea  of  not  guilty.  *  And  where  an 
action  is  brought  by  a  tenant  against  his  landlord  for  a 
wrongful  distress,  the  defendant  cannot  justify  the  taking 
under  the  general  issue  unless  the  goods  were  seized  upon 
the  demised  j^remises.^  f  The  rule  that  all  of  the  part 
owners  of  a  chattel  must  join  in  the  action,  being  for  the 
benefit  of  the  defendant,  he  may  waive  the  right  to  insist 
upon  it  by  not  raising  the  objection  by  plea  in  abatement. 
He  cannot  take   advantage   of  the   irregularity  under  the 


'  14  Johns.  166.  . 

-  Oliver  v.  Phelps,  1  Spencer,  180. 

*  By  the  statute  of  James  1st,  it  was  first  enacted  that  in  actions  Ijrought 
against  certain  officers  therein  named  and  their  assistants  for  any  act  done  in 
their  respective  offices,  the  defendant  might  plead  the  general  issue,  and  give  in 
evidence  any  sjiecial  matter  which,  had  it  l)een  pleaded,  would  have  been  suffi- 
cient to  have  discharged  the  defendant  of  tlie  trespass.  It  was  made  in  favor  of 
certain  officers  only,  who  were  frequently  exposed  to  A-exatious  suits  for  acts 
done  in  the  execution  of  their  several  offices.  The  expense,  delay  and  vexation 
of  pleading  specially  a  justification  in  every  such  case  must  have  been  extremely 
burdensome.  Besides,  so  strict  were  the  rules  of  pleading  held,  both  as  to 
matter  of  form  and  substance,  that  few  cases  could  come  to  trial  on  their  real 
merits.  For  this  reason,  it  was  in  the  power  of  a  few  litigious  persons  to  ruin  an 
officer  in  public  trust,  though  acting  with  the  utmost  integrity,  and  the  fullest 
knowledge  of  his  duty. 

t  The  first  count  in  trespass  was  for  seizing  and  carrying  away  certain  goods, 
chattels  and  effects  of  the  plaintiff,  to  wit,  &:c.  Fifth  count  for  tearing  aM'ay, 
severing  and  removing  divers  fixtures  of  the  plaintiff.  Pleas,  first,  not  guilty ; 
secondly,  a  justification  to  the  first  count  by  taking  the  goods  and  chattels  as  a 
distress  for  rent  due  from  the  plaintiff.  Keplication  denying  the  tenancy,  and 
issue  thereon.  The  judge  at  the  trial  directed  tlie  jury  that  the  justification 
covered  the  whole  declaration.  A  verdict  was,  however,  found  for  the  plaintiff', 
with  one  farthing  damages.  It  was  held  that  the  justification  was  prima  facie 
an  answer  to  seizing  and  carrying  away  in  the  first  count,  and  that  the  plaintiff, 
if  he  intended  to  rely  on  some  of  the  articles  l^eing  fixtures,  ought  to  have  re-^ 
plied  that  fact,  but  tliat  the  justification  was  no  answer  to  the  tresjiasses  stated 
in  the  fifth  count  (Twigg  v.  Potts,  1  C.  M.  &  R.  89 ;  3  Tyr.  969). 


§  587.  PLEA.  607 

general  issue,  although  it  appear  from  the  plaintiff's  own 
showing  that  he  is  only  a  part  owner.^ 

§  587.  Where  in  an  action  of  trespass  for  taking  goods,  the 
defense  is  that  they  were  taken  under  process,  the  plea  must 
specify  and  particularly  describe  the  process,  and  set  out 
every  fact  necessary  to  show  the  justification;  otherwise  it 
will  not  be  allowed  in  evidence.^  But  it  need  not  state  the 
cause  of  action  for  which  the  warrant  was  issued.^  If  the  de- 
fendant justify  as  plaintiff  in  a  suit  in  an  inferior  court,  under 
mesne  process  of  that  court,  he  must  allege,  in  his  plea,  that 
the  cause  of  action  arose  within  the  jurisdiction ;  *  and  that 
the  process  has  been  returned.^  In  justifying  a  trespass  un- 
der the  process  of  a  foreign  court,  a  plea  which  only  states 
that  the  court  abroad  w^as  governed  by  foreign  laws ;  that 
the  property  seized  was  wdthin  its  jurisdiction  ;  that  certain 
legal  proceedings  were  had,  according  to  such  foreign  laws, 
against  the  property  in  question  in  such  court,  having  com- 
petent jurisdiction  in  that  behalf;  that  the  defendant  was 
ordered  by  the  said  court,  having  competent  authority  in 
that  behalf,  to  seize  the  property,  is  bad,  being  too  general, 
and  not  giving  the  plaintiff"  notice  whether  the  defendant 
justified  as  an  ofiicer  of  the  court,  or  party  to  the  cause,  or 
of  what  nature  the  charge  was,  or  by  whom  instituted,  or 
what  the  order  of  seizure  was.^  Although,  where  the  action 
is  against  an  officer  for  levying  upon  property,  the  defendant 
need  not  plead  the  judgment,  nor  show  a  sale  of  the  property 
taken, ^  ^  yet  he  ought  to  describe  the  execution  with  suffi- 


'  Lothrop  V.  Arnold,  25  IVIaine.  136 ;  Pickering  v.  Pickering,  11  N.  Hamp. 
141;  12  lb.  148;  Hart  v.  Fitzs^erald,  2  Mass.  511";  Patten  v.  Gurney,  17  Mass. 
182;  Bradish  v.  Schenck,  8  Johns.  151;  1  Chit.  PI.  52,  53. 

^  Harrison  v.  Davis,  2  Stew.  350. 

=  Linsley  v.  Keys,  5  Johns.  123;  Belk  v.  Broadbent,  3  Term  R.  183. 

*  Evans  v.  Munkley,  4  Taunt.  48;  Trevor  v.  Wall,  1  T.  B.  151. 

"  Middleton  v.  Price,  1  Wiis.  17;  2  Stra.  1184;  Rowland  v.  Veale,  Cowp.  20. 
«  CoUett  V.  Keith,  2  East,  260;  4  Esp.  212.        'Burton  v.  Sweauej',  4  Mo.  1. 

*  In  an  action  against  an  officer  for  seizing  the  property  of  the  plaintiff  upon 
executions  against  a  third  ])erson,  it  was  held  that  a  special  plea,  in  which  tlie 
defendant  set  up  a  bond  of  indemnity  executed  by  the  plaintiffs  in  the  execu- 
tions, need  not  recite  the  judgments  on  which  the  executions  issued  (Davis  v, 
Davis,  2  Gratt.  363;. 


COS         REIMEDY   FOK  WRONGFUL  TAKING   OF   PROPERTY.     §  588. 

cieut  certainty,  stating  out  of  wLat  court  or  by  Avhat  author- 
ity it  issued,  and  giving  sucli  information  in  the  defense  as 
may  show  the  plaintiff  what  is  relied  upon.^ 

§  588.  Where  an  officer  justifies  the  seizure  of  property 
in  the  hands  of  a  third  person,  he  must  plead  his  justification 
specially,  it  Ibeing  new  matter.^  It  is  no  defense  that  a  third 
person  is  the  true  owner,  unless  the  wrong-doer  connect  him- 
self with  the  true  owner.^  If  tlie  plaintiff  have  the  posses- 
sion and  apparent  ownership  of  the  goods,  a  plea  that  they 
Ijelong  to  a  third  party  puts  no  more  in  issue  than  not 
guilty,  and  is  bad  for  the  reason  that  it  denies  the  plaiutift^'s 
possession.^  *     In  an  action  of  tres2:>ass  for  taking  and  carry- 


•  Cook  V.  Miller,  11  111.  610;  Simpson  v.  Watrus,  3  Hill,  619. 
-  Glazer  v.  Clift,  10  Cal.  303. 

=  Wooley  V.  Edson,  35  Vt.  214. 

'  Carter  v.  Johnson,  2  M.  &  R.  263;  Heath  v.  Milward,  2  Bing.  N.  C.  98; 
Nelson  v.  Cherrill.  1  M.  &  Scott,  452 ;  7  Bing.  663 ;  Ashmore  v.  Hardv,  7  Car.  & 
P.  501 ;  Davis  v.  Hooi^er,  4  Stew.  &  Port.  231 ;  Brown  v.  Artcher,  1  Hill,  266. 

*  To  an  action  of  trespass  for  seizing  the  goods  of  the  plaintiflf,  the  defendant 
pleaded  that  one  C.  recovered  a  judgment  against  F.,  and  sued  out  a  writ  of  Ji. 
fa.  directed  to  the  sheriH"  of  Cheshire,  by  virtue  of  which  writ  the  defendant,  as 

such  sheiiff,  seized  the  said  goods  and  chattels  of  the  said  F.,  which  are  the  said 
several  alleged  trespasses,  «fcc.  It  was  held,  on  demurrer,  that  the  plea  was  bad 
(Harrison  v.  Dixon,  13  L.  J.  N.  S.  247;  1  Dowl.  &  L.  454;  12  Mees.  &  W.  142). 

In  Demick  v.  Chapman,  11  Johns.  132,  Chapman  brought  an  action  of  tres- 
pass <f6  Imis  asportatis  in  the  Court  of  Common  Pleas, "against  Demick,  who 
pleaded  the  general  issue.  On  the  trial,  the  defendant  offered  to  prove  that  the 
])roperty  in  question  belonged  to  one  Ralph  Chapman,  by  whom  it  was  fraudu- 
lently conveyed  to  the  plaintiflf,  and  that  the  defendant  s'eized  it  under  an  at- 
tachment against  Ralph  Chapman.  This  evidence  being  overruled,  judgment 
was  rendered  for  the  plaintiflf.  The  Supreme  Court,  in  affirming  the  judgment, 
said:  "The  possession  of  the  projjerty  by  the  plaintiff"  was  j^rima  facie  evidence 
of  right;  and  a  mere  stranger  could  not  lawfully  deprive  him  of  that  possession. 
The  offer,  therefore,  to  prove  that  the  property  belonged  to  Ralph  Chapman 
could  not  excuse  the  taking  by  the  defendant,  without  showing  some  authority 
or  right  derived  from  Ralph  Chapman,  amounting  to  a  justification ;  and  this 
was  not  admissible  under  the  general  issue.  The  taking  was  prima  fade  a  tres- 
pass; and  the  excuse  that  it  was  done  by  virtue  of  an  attachment  issued  by  a 
justice  of  the  peace,  ought  to  have  been  pleaded  specially.  The  transfer  of  the 
property,  although  with  the  design  to  defraud  creditors,  was  valid  as  between 
the  parties.  And  the  defense,  founded  on  the  right  of  a  creditor  to  defeat  it  by 
attachment,  or  by  a  judgment  and  execution,  is  very  special,  and  ought  to  be 
disclosed  by  pleading.  The  defendant,  in  the  court  below,  did  not  come  in  aid 
of  the  officer,  or  act  under  his  command,  so  as  to  bring  himself  within  the  statute 
authorizing  the  special  matter  to  be  given  in  evidence  under  the  general  issue. 
The  testimony  was  therefore  properly  overruled." 

In  Brown  v.  Artcher,  si^^ra,  the  court,  per  Cowen,  J.,  discussed  the  ]mnci- 
ples  of,  and  reviewed  the  decisions  sustaining,  the  above-mentioned  rule,  as  fol- 
lows:  "It  was  held  in  the  Year  Book  (27  H.  8,  21,  case  II),  that  in  trespass  de 


§  588.  PLEA.  009 

ing  away  from  the  plaintiff  several  horses,  the  defendant 
pleaded  that  one  Sage  being  in  debt  to  him,  and  having  de- 
parted out  of  the  State  or  kept  concealed  within  it,  with  in- 
tent to  defraud  his  creditors,  the  defendant  had  caused  the 
property  of  Sage  to  be  attached,  including  the  horses  in 
question,  which  had  previously  been  conveyed  by  Sage  to 
the  plaintiff,  with  intent  to  defraud  the  creditors  of  Sage  of 
thcK  just  debts;  and  that  the  defendant,  in  aid  and  by  com- 
mand of  the  sheriff,  for  the  space  of  two  days,  did  safely 
keep  the  said  horses  as  the  proper  goods  and  chattels  of  the 
said  Sage,  which  was  the  same  tresj)ass  complained  of  by  the 
plaintiff.     It  was  held  that  the  j^lea  was  good.^  '^    If  the  plea 

bonis  a  plea  that  the  goods  were  not  the  plaintiff's  property  was  bad.  The  same 
thing  was  afterward  admitted  in  Wildman  v.  Norton.  1  Ventr.  249.  I  believe  it 
has  never  been  denied.  Chitty  sa\'s  that '  the  defendant  cannot  plead  property  in 
a  stranger  or  himself,  because  that  goes  to  contradict  the  evidence  which  the 
plaintiff  must  adduce  on  the  general  issue  in  support  of  his  case '  (1  Chit.  Plead. 
527,  Am.  ed.)  Tlie  usual  test  of  an  objection,  that  the  plea  amounts  to  the  gen- 
eral issue,  is,  whether  it  takes  away  all  color  for  maintaining  an  action,  by  fixing 
a  negative  upon  the  plaintiff's  right,  in  the  first  instance.  Thus,  in  trespass, 
quare  clausum  fregit^  the  defendant  pleading  title  in  a  third  person,  a  demise  to 
himself,  and  an  entry  under  that  demise,  this  plea  was  held  bad,  because  it 
showed  a  right  of  possession  in  the  defendant  at  the  time  he  entered  and  com- 
mitted the  trespass  complained  of  (CoUett  v.  Fliuu,  5  Cowen,  460).  So  a  plea 
that  he  entered  under  a  license  from  such  third  person  (Underwood  v.  Campbell, 
11  Wend.  78).  Such  a  plea  standing  alone  virtually  says  that  tlie  defendant  did 
not  commit  any  trespass  in  the  plaintiff's  close;  and  is  therefore  but  another 
mode  of  pleading  not  guilty.  It  absolutely  and  necessarily  denies  all  possessory 
right  in  the  plaintiff,  the  contrary  of  which  he  must  maintain,  or  he  is  not  enti- 
tled to  sue.  Such  a  plea  is  said,  by  the  books,  in  itself  to  take  away  all  color  or 
pretense  for  an  action ;  and  therefore,  to  be  maintainable  as  a  special  plea,  it 
must  surmise  some  possession  in  the  plaintiff,  at  the  time,  under  color  of  a  de- 
fective title.  Taking  away,  in  itself,  all  imiMed  color,  it  must,  in  the  manner 
mentioned,  substitute  what  is  called  express  color.  The  same  rule  of  pleading  has 
been  applied  to  trcsp;iss  de  bonis  (Leyfield's  Case,  10  R.  90).  Chitty  stiys,  a  plea 
that  A.  was  possessed  of  the  goods  in  question  as  of  his  own  proper  goods, 
amounts  to  a  denial  that  the  plaintiff  had  any  property  in  them,  and  tlierefore 
gives  no  color  of  action  in  itself.  To  remedy  this  defect,  it  must  sunnise  that 
the  defendant  bailed  the  goods  to  a  stranger  who  delivered  them  to  the  plaint- 
iff, from  whom  the  defendant  took  them  ;  or  a  possession  of  the  plaintiff  under 
some  other  defective  title.  It  is  peculiar  to  the  action 'of  trespass  that  the  de- 
fendant may  surmise  such  possession,  setting  up  a  mere  fiction,  not  traversable, 
and  thus  turn  what  would  otherwise  be  defective,  as  amounting  to  the  general 
issue,  into  a  special  {)lea.  But  if  such  express  color  be  not  given,  the  plea  of 
property  in  a  strMnger  or  the  defendant  is  cm])hatically  defective  in  the  case  of 
trespass  de  bonis;  for  there  especially,  no  actual  yjossession  being  expressly  shown 
in  the  plaintiff*  the  law  intends  that  it  is  with  the  general  owner." 

'  Patciier  v.  Sprague,  2  Johns.  4G2. 

*  Tlic  plea  of  not  possessed,  in  an  action  of  trespass  for  taking  the  plaintiff's 
goods,  puts  in  issue  the  plaintiff's  title  to,  as  well  as  the  possession  of,  the  goods 
(Harrison  v.  Dixon,  13  Law  J.  N.  S.  247). 

Vol.  I.— 39 


610         REMEDY  FOR  WRONGFUL   TAKING   OF  PROPERTY.     §  58^. 

justifies  the  taking,  it  need  not  traverse  the  detention  and 
conversion.^  A  declaration  in  trespass  to  goods  charged  the 
defendant  with  taking  and  carrying  them  away,  and  also 
with  converting  them  to  his  own  use.  It  was  held  that  such 
conversion  was  merely  matter  of  aggravation,  and  that  a  plea 
to  the  whole  declaration,  justifying  the  taking  of  the  goods 
and  carrying  them  away,  but  omitting  to  justify  their  con- 
version, was  good.^  Where  the  defendant  pleads  that  the 
goods  were  taken  by  virtue  of  a  writ  of  replevin,  he  must 
allege  that  a  bond  was  given  pursuant  to  the  statute,  before 
the  property  was  delivered  to  him.'^  * 

§  589.  In  a  plea  of  justification,  by  a  collector  under  a 
rate  bill  and  warrant  to  collect  a  tax  voted  by  a  town,  it  is 
not  necessary  to  allege  that  the  town  was  a  corporation,  or 
to  show  any  charter  of  incorporation.  It  may  be  generally 
true  that  where  a  justification  is  relied  on,  founded  upon  the 
acts  of  a  corporation,  the  existence  or  charter  of  incorpora- 
tion must  be  set  forth,  especially  where  the  corporation  is  a 
private  one  or  created  for  private  pui'poses.  Although  it 
has  been  considered  that  this  principle  extends  to  some  cor- 
porations created  by  public  laws,  for  a  limited  or  j^articular 
purpose,  as  in  the  case  of  a  school  district,  yet  the  principle 
cannot  be  extended  to  political  corporations  created  by  pub- 
lic statutes  principally  for  public  purposes,  and  not  for  the 
special  benefit  of  the  members  of  the  same.  Towns  are  cor- 
j)orations  of  this  nature.     Their  corporate  powers  are  given 


^  Burton  v.  Sweaney,  4  Mo.  1 ;  Dye  v.  Leatherdall,  3  Wils.  20. 

'  Pratt  V.  Pratt,  17  L.  J.  299. 

=  Moors  V.  Parker,  3  Mass.  810 ;  Cushman  v.  Churchill,  7  lb.  97. 

*  In  Moors  v.  Parker,  supra^  the  court  said;  "A  plaintiff  in  replevin  cannot 
protect  himself  by  the  execution  of  his  writ,  unless  the  officer  pursue  the  author- 
ity which  he  derives  only  from  the  writ.  The  authority  to  the  officer  to  replevy 
and  deliver  the  goods  to  the  plaintiff"  is  conditional.  The  plaintiff  must  first 
give  him  a  bond,  with  sureties,  in  the  penalty  and  with  the  condition  required 
by  the  writ.  And  if  the  plaintiff  g-ive  him  this  bond,  yet  the  goods  are  irreplev- 
iable if  they  are  detained  as  the  plaintiff's  on  mesne  process,  warrant  of  distress, 
or  on  execution ;  and  if  the  officer  should  deliver  goods  so  detained,  lie  will  be  a 
trespasser,  the  writ  being  no  justification  for  him.  The  defendant  ought,  there- 
fore, to  have  alleged  in  his  bar  that  before  the  delivery  he  had  given  the  coroner 
the  bond  required  by  his  writ,  and  also  that  the  goods  were  not  so  detained  as 
to  be  irrejileviable  by  that  writ." 


§590.  PLEA.  611 

by  public  statutes,  and  are  of  public  notoriety.  Their  corpo- 
rate existence  or  powers  are  not  derived  from  their  charter, 
which  is  rather  a  grant  of  land  than  a  charter  of  incorpora- 
tion. The  persons  residing  within  the  territorial  limits  of  a' 
town,  are  made  members,  not  on  their  petition  or  request, 
but  without  their  consent ;  and  are  required  to  perform  du- 
ties for  the  benefit  of  the  whole  public,  such  as  making  and 
repairing  roads,  building  bridges,  and  taking  care  of  the  poor 
within  their  territorial  limits.  As  a  branch  of  the  government, 
and  as  a  corporation  or  institution  created  for  public  and  po- 
litical objects,  not  by  a  charter,  but  by  a  public  and  general 
statute,  courts  must  take  notice  of  their  existence  and  recog- 
nize their  powers  and  privileges.  It  is  not,  therefore,  neces- 
sary to  set  forth  in  a  plea,  either  their  existence  or  their  au- 
thority as  a  town.^  The  plea  need  not  state  the  purposes 
for  which  the  tax  was  voted.  The  liability  of  the  plaintiff 
is  sufficiently  alleged  by  averring  that  he  was  an  inhabitant 
of  the  town,  having  taxable  property  therein,  that  a  rate  bill 
was  made  out,  and  that  he  was  assessed  in  the  sum  men- 
tioned.^ * 

§  590.  A  special  plea  admits  all  it  does  not  deny ;  but 
not  the  trespasses  precisely  as  laid,  in  kind,  degree,  extent,  or 
value.  As  to  acts  done,  a  special  plea,  if  not  supported,  is 
much  like  a  judgment  by  default.     It  admits  a  cause  of  ac- 


^  Briggs  V.  Whipple,  7  Vt.  15.      -  ^  Tbid. 

*  In  Briggs  V.  Whipple,  svj/ra.  the  court  said:  "Taking  into  consideration 
that  all  these  taxes  are  to  be  laid  for  public  purposes,  that  they  are  voted  by  the 
persons  who  have  to  pay  the  same,  that  the  controversy  is  usually  between  in- 
habitants of  the  same  town,  we  think  it  not  unwarrantable  to  make  a  presump- 
tion in  favor  of  the  legality  of  the  proceedings  of  a  town  in  voting  a  tax,  until 
the  contrary  is  made  to  appear,  and  to  cast  the  burden  of  proving  its  illegality 
on  the  person  contesting  the  same,  if  the  tax  was  voted  at  a  legal  meeting  of  the 
inhabitants  in  jiursuance  of  a  previous  warning.  It  follows  that  it  will  be  suf- 
ficient for  any  person,  justifying  under  a  tax  laid  by  a  town,  to  state  that  it  was 
voted  at  a  legal  meeting  of  the  town  duly  warned,  leaving  those  who  contest  its 
A'alidity  to  specify  the  particulars  wherein  it  is  illegal  or  invalid." 

In  Iowa,  wliere  an  action  of  trespass  was  brouglit  against  a  county  treasurer 
for  taking  personal  property  for  the  non-payment  of  taxes,  under  a  warrant  of 
the  county  judge,  attaclied  to  the  tax  list,  commanding  him  to  collect  the  taxes 
therein  mentioned,  it  was  held  that  he  need  not  set  out,  with  a  copy  of  the  war- 
rant, the  tax  list;  but  that  an  averment  in  his  answer  of  his  readiness  to  produce 
the  tax  list  was  sufficient  (Games  v,  Kobb,  8  Clarke,  Iowa.  193). 


612         REMEDY  FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  591. 

tion  of  the  general  nature  set  forth ;  but  everything  else 
must  be  shown  in  proof,  unless  exact  precision  in  the  ad- 
mitt  ad  allegation  be  material  to  the  j^laintiff.^  * 

5.  Heplwation. 

§  591.  Although,  as  already  stated,^  the  plaintiff  need 
only  traverse  the  substantial  averments  of  the  plea,  yet  a 
replication  which  leaves  the  defendant  in  uncertainty  as  to 
the  point  to  be  contested,  is  bad.  Where,  for  instance,  the 
plaintiff  rej^lied  to  a  plea  which  justified  the  taking  as  an 
officer  under  an  attachment,  that  the  defendant  did  not  at- 
tach said  goods  by  virtue  of  said  writ,  it  was  held  that,  as 
the  replication  put  in  issue  both  the  fact  of  the  attachment 
and  the  authority  by  which  it  was  made,  it  was  was  double 
and  uncertain.^  So,  likewise,  a  replication  de  injuria^  also 
new  assigning  that  the  goods  were  taken  as  a  distress  not 
only  for  the  sum  alleged  in  the  justification,  but  also  for  an- 
other sum,  &c.,  is  double.^  But  a  replication  to  a  plea  justi- 
fying the  removal  of  the  chattels  because  they  incumbered  a 
close,  as  to  a  part  of  the  goods  de  injuria,  and  as  to  the 
other  part,  extra  force  and  violence,  was  held  good  on  special 
demurrer.^  f     In  trespass  against  B.  &>  C.  for  seizing  and 


'  Rich  V.  Rich,  16  Weud.  663 ;  Wagener  v.  Bell,  4  Monr.  7 ;  Haley  v.  Cal- 
ler, Miuor,  6"3. 

^  Ante,  §  86.  =  Briggs  v.  Mason,  31  Vt.  433. 

'  Gisborne  v.  Wyatt,  1  Gale,  35 ;  Thomas  v.  Marsh,  5  Car.  &  P.  596. 

^  Vivian  v.  Jenkin,  3  Nev.  &  M.  14;  1  Har.  &  W.  468;  3  Ad.  &  E.  741. 

*  Where  it  appeared  that  the  plaintiff  owned  absolutely  some  of  the  goods 
injured,  and  was  part  owner  of  the  rest,  it  was  held  that  a  refusal  to  exclude 
evidence  of  tlie  trespass  to  the  goods  of  which  tlie  plaintifl"  was  only  part  owner, 
was  correct,  the  defendant  not  having  raised  the  question  of  OM'nership  in  his 
plea  (Lefebre  v.  Utter,  22  Wis.  189). 

t  In  an  action  of  trespass  for  taking  cattle,  the  defendant  justified  the  tak- 
ing as  school  district  collector.  He  pleaded  the  organization  and  existence  of 
the  district,  the  warning  and  holding  of  the  school  district  meeting,  the  voting 
of  a  tax,  the  liability  of  the  plaintiff  to  be  taxed,  the  assessment  of  the  tax  by 
the  prudential  committee  of  the  school  district,  the  delivery  to  the  defendant 
of  a  warrant  for  the  collection  of  the  tax,  and  his  proceedings  thereunder  in 
taking  and  disposing  the  property  referred  to  in  the  plaintitl''s  declaration.  To 
this  plea  the  plaintiff  replied  that  he  ought  not  to  be  barred  because  the  sup- 
posed tax  was  not  legally  and  duly  assessed  by  the  then  prudential  committee 
upon  the  lists  of  the  district.     It  was  urged  that  the  replication  was  defective 


§  592.  REPLICATION.  -  613 

converting  tlie  goods  of  A.,  B.  alone  justified  the  seizure  and 
impounding  of  the  goods  as  a  distress  for  rent,  within  thirty 
days  after  they  had  been  wrongfully  removed  from  the  de- 
mised premises.  A.  new  assigned  that  he  brought  his  ac- 
tion, not  for  the  trespasses  in  the  plea  mentioned,  but  for 
that  B.,  after  the  seizure,  and  after  payment  and  acceptance 
of  the  rent  and  expenses,  and  after  he  ought  to  have  restored 
to  A.  the  goods  so  distrained,  retained  possession  thereof, 
and  sold  and  disposed  of  them.  It  was  held  that  this  was 
no  departure.^  "^ 

§  592.  If  an  officer  justify,  under  process,  the  taking 
away  of  goods  and  converting  them  to  his  own  use,  which  is 
unwarrantable,  but  qualifies  it  after,  by  saying  that  he  took 
them  for  the  purpose  of  attaching  the  plaintiif  according  to 
the  exigency  of  the  writ,  he  throws  it  on  the  plaintiff  to 
show  the  excess  in  his  replication.^  When  an  officer  justifies 
under  a  legal  Avarrant,  acts  relied  upon  to  make  him  a  tres- 
passer ab  initio  should  be  newly  assigned.^  Where  the  of- 
ficer justifies,  under  an  execution,  a  defect  in  the  replication 
in  not  alleging  that  the  execution  was  paid  and  satisfied 


in  not  being  single — that  it  put  in  issue  two  or  more  separate   and  independent 
facts,  each  of  which  constituted  a  defense  to  the  action,  and  that  it  was  subject 
to  the  same  objections  that  woukl  exist  to  the  general  replication  de  injiiria.     It 
wds,  however,  held  that  the  replication  was  sufficient  (Moss  v.  Hindes,  28  Vt 
279). 

'  West  V.  Nibbs,  4  C.  B.  172;  17  L.  J.  C.  P.  150. 

"  Moore  v.  Taylor,  5  Taunt.  69.  '  Garrett  v.  Gwathmey,  5  Blackf.  237. 

*  A  declaration  averred  that  the  defendants  wrongfully  took  the  plaintiff's 
goods.  The  replication  stated  that  the  goods  were  taken  by  a  sheriff  at  tiie  in- 
stance and  by  the  direction  of  the  defendants.  Held  that  there  was  no  de- 
parture (Richardson  v.  Hall,  21  Md.  399). 

In  trespass  to  personal  property,  when  the  answer  to  the  plea  confesses  and 
avoids  it,  the  replication  should  be  special.  So,  where,  in  breaking  and  enter- 
ing the  plaintifl"'s  house  or  land,  felling  his  timber,  or  taking  away  his  goods, 
the  defendant  pleads  a  license  which  the  plaintiff"  had  revoked  before  any  of  the 
trespasses  were  committed,  or  which  was  confined  to  some  particular  thing,  and 
the  defendant  exceeded  it,  the  plaintiff  must  state  the  revocation  or  excess,  in  a 
new  assignment.  But  there  are  some  replications  which  rather  partake  of  the 
nature  of  a  new  assignment  tlian  are  properly  and  strictly  so.  As  when  a  man 
abuses  an  authority  or  license  which  the  law  gives  him,  by  which  he  becomes  a 
trespasser  ah  initio,  if  the  defendant  pleads  such  license  or  authority  the  plaintiff 
must  reply  the  abuse  (1  Chitty's  PI.  410-5G3,  567- 5G8;  Dye  v.  Leatherdall,  3 
Wils.  20;  Taylor  v.  Cole,  3  1).  &  E.  292;  1  H.  Bl.  555;  Great  Falls  Co.  v. 
Worster,  15  N.  Hamp.  412). 


614         KEMEDY  FOR  WRONGFUL  TAKING  OF  PROPERTY.     §  593. 

previous  to  tlie  trespass,  and  how  much  money  was  paid, 
is  cured  by  verdict.^  * 

6.  Evidence  of  2'>ossession. 

§  593.  In  an  action  of  trespass  for  taking  personal  prop- 
erty, the  plaintiff  is  bound  to  show  title  to  the  property 
taken,  or  a  rightful  possession.  In  showing  title,  proof  that 
he  was  in  possession  claiming  title,  is  sufficient  prima  facie 
evidence  to  enable  him  to  maintain  the  action ;  and  no  one 
but  the  true  owner,  or  one  connecting  himself  with  the  true 
owner,  is  at  liberty  to  impeach  his  title.^  Proof  of  title 
will  not  dispense  with  proof  of  possession,  whether  the 
plaintiff 's  title  be  derived  from  an  absolute  bill  of  sale,  or 
a  condition  subsequent  as  a  mortgage.^  The  defendant  is 
not  put  to  his  justification,  until  the  fact  of  possession,  either 
actual  or  constructive,  is  established  by  the  plaintiff,  w^hich 
fact  may  be  controverted  by  the  defendant.^  A.  brought  an 
action  of  trespass  against  B.  for  taking  two  tables  and  a 
chair.     B.  pleaded  not  guilty.     It  was  proved  that  B.  took 


^  Davis  V.  Cooper,  6  Mo.  148. 

^  Hoyt  V.  Van  Alstyue,  15  Barb.  568;  Duncan  v.  Spear,  11  Wend.  54,  and 
note. 

=  Toby  V.  Reed,  9  Conn.  216;  Davis  v.  Young,  20  Ala.  151. 

*  Howe  V.  Farrar,  44  Maine,  233. 

*  Where,  in  trespass  for  detaining,  after  tender,  goods  distrained  for  arrears  of 
rent,  a  new  assignment  began  with  stating  that  the  plaintiff  brought  his  action 
not  only  for  the  trespasses  in  the  introductory  part  of  the  plea  mentioned,  «&c., 
but  also  for  that,  &c.,  it  was  held  that  this  inartificial  averment  was  in  the  na- 
ture of  a  discontinuance  which  was  cured  after  verdict  (Ladd  v.  Thomas,  4  Per. 
&D.  9;  4  Jur.  798). 

The  place  where  the  goods  were  taken,  must  in  all  probability  be  the  place 
where  the  witnesses  reside,  and  in  that  county  the  trial  ought  to  be,  not  on  the 
exploded  notion  for  the  purpose  of  having  the  cause  tried  by  a  jury  of  the 
vicinage,  but  because  the  convenience  of  the  parties  will  be  promoted  by  it, 
and  there  will  be  a  saving  of  expense  in  regard  to  witnesses.  In  Ross  v.  Lown, 
8  Johns.  354,  which  was  an  action  of  trespass  for  carrying  away  the  goods  and 
chattels  of  the  plaintiff,  the  venue  was  changed  upon  the  application  of  the  de- 
fendant from  Onondaga  county  to  Saratoga  county  where  the  trespass  was  com- 
mitted. The  plaintiff  now  moved  to  return  the  venue  to  the  county  of  Onon- 
daga, on  the  ground  that  he  had  two  or  more  material  witnesses  residing  in  the 
county.  The  court,  in  denying  the  motion,  said:  "By  the  practice  of  the  King's 
Bench,  on  the  present  affidavit,  the  defendant  would  be  entitled  to  change  the 
venue  unless  the  plaintiff'  stipulated  to  give  material  evidence  arising  in  Onon- 
daga; and  without  such  stipulation,  the  venue  ought  to  be  retained  where  it 
now  is,  in  Saratoga. " 


§  594.  PROOF   OF   TAKING.  615 

two  cliairs  and  a  table  in  tlie  house  of  D.  But  none  of  tlie 
witnesses  knew  A.,  and  there  was  no  evidence  of  any  kind 
to  connect  A.  with  the  goods  taken  in  D.'s  house.  It  was 
held  that  to  entitle  the  plaintiff  to  recover  on  these  plead- 
ings, there  must  be  some  evidence  to  connect  the  plaintiff' 
with  the  goods  taken  ;  and,  that  if  there  was  no  such  evidence 
the  defendant  would  be  entitled  to  a  verdict.^  *  Where  the 
plaintiff  proves  an  actual  purchase,  payment  of  the  considera- 
tion, and  the  taking  and  keeping  possession  of  the  property, 
the  burden  of  j^roof  is  on  the  defendant  if  he  seeks  to 
impeach  the  title  on  the  ground  of  fraud.^ 

7.  Proof  of  taking. 

§  594.  A  wrongful  taking  may  be  proved  although  that 
phrase  is  not  used  in  the  pleadings.^  Where  the  property 
was  taken  by  virtue  of  a  warrant  signed  by  the  defendant, 
he  not  being  present  at  the  taking,  and  in  no  other  way 
dii'ecting  it,  the  plaintiff  must  produce  the  warrant ;  that 
being  the  best  evidence  of  what  the  defendant  did.'^  When 
the  action  is  against  a  United  States  collector,  by  the  owner 
of  a  vessel  which  was  seized,  the  sentence  of  restitution  of 
the  United  States  District  Court,  not  appealed  fi'om  and 
still  remaining  in  full  force,  is  conclusive  evidence  that  the 
seizure  was  illegal.^  f 

*  Forman  v.  Dawes,  1  Car.  &  M.  127.         -  Salmon  v.  Orser,  5  Duer,  511. 

'  Buck  V.  Colbath,  7  Minn.  310.  *  Stebbins  v.  Cooper,  4  Denio,  191. 

*  Hoyt  V.  Gelstou,  13  Johns.  141 ;  affi'd  on  error,  lb.  561. 

*  In  trespass  for  taking  furze,  where  there  was  the  general  issue,  and  a  plea 
of  a  right  to  estovers  from  a  common,  it  was  held  that  the  defendant  might, 
under  the  general  issue,  give  evidence  of  an  exclusive  right  of  possession  (Fearce 
V.  Lodge,  13  Moore,  50). 

In  Maine,  in  a  prosecution  under  the  statute,  for  the  ^\TongfuI  destruction  of 
property  without  the  consent  of  the  owner,  it  is  not  necessary  to  prove  that  the 
possession  of  the  property  was  wrongful  (State  v.  Pike,  33  Maine,  3C1). 

t  "After  the  decree  of  acquittal  in  the  District  Court,  the  same  question 
could  not  be  tried  again  in  the  action  of  trespass;  and  the  decision  that  the 
vessel  was  not  liable  to  seizure  and  forfeiture,  under  the  charge  alleged,  was 
binding  and  conclusive  in  the  action  between  these  parties.  The  officer  who 
seizes  goods  on  the  ground  of  forfeiture,  and  causes  them  to  be  libeled  and 
tried,  has  but  two  pleas  in  bar,  in  an  action  by  the  owner.  These  are,  the 
judgment  of  the  court,  if  the  goods  be  condemned,  and  a  certificate  of  probable 
cause,  if  the  goods  be  acquitted.     If  he  can  show  neither,  he  must  answer  for 


GIG  EEMEDY  FOR  WEONGFUL  TAKING   OF  PROPERTY.     §  595. 

§  595.  A  substantial  proof  of  the  taking  set  out  in  tlie 
declaration  will  entitle  the  plaintiff  to  a  verdict.  '^  In  an 
action  for  the  penalty  imposed  by  a  statute  of  New  York, 
for  taking  down  or  defacing  any  notice  of  a  sale  of  real  or 
personal  property  put  up  by  a  sheriff,  it  was  proved  that 
within  an  hour  after  the  officer  had  posted  the  notice  at 
McG.'s  grocery,  the  defendant  asked  if  the  officer  had  left 
any  notice  there,  took  the  notice  from  tke  counter,  where  it 
lay,  and  carried  it  away,  saying  that  "  he  didn't  want  any 
sucli  thing  lip  with  his  name  on "  and  tkat  "  it  was  his 
business  to  take  them  down,  and  he  Avould  take  them  all 
down  ;  "  that  the  officer  posted  the  notice  by  pinning  it  to 
the  wall ;  that  the  wind  blew  it  down,  and  Mrs.  McG.  picked 
it  up  and  laid  it  on  the  counter,  till  ske  could  get  something 
to  put  it  up  with,  where  it  was  lying  when  the  defendant  took 
it.     It  was  held  that  the  plaintiff  was  entitled  to  recover.^  f 

the  seizure  in  an  action  at  common  law.  It  would  operate  most  injuriously  to 
the  plaintiff,  if  the  acquittal  of  his  vessel  in  the  District  Court  was  not  to  be 
held  conclusive  on  the  question  of  forfeiture,  in  all  other  courts.  Suppose  the 
Supreme  Court  in  this  case,  had  admitted  as  a  legal  justification  the  matter  set 
up  as  a  defense,  and  had  held,  in  opposition  to  the  decree  of  the  District  Court, 
that  the  vessel  was  lawfully  seized.  It  is  certain  that  such  a  decision  could  not 
work  a  forfeiture  of  the  ship;  for  no  other  court  but  the  District  Court,  has 
authority  to  condemn.  The  only  effect  of  such  a  decision  would  be  to, deprive 
Hoyt  of  his  remedy  for  the  seizure  and  detention  of  his  vessel.  He  and  his  vessel 
are  to  be  deemed  innocent  as  resjiects  the  United  States,  but  guilty  as  respects 
the  officer  who  seized.  His  property  is  fairly  acquitted  by  the  only  court  that 
has  authority  to  try  and  condemn.  The  government,  in  whose  name  and  on 
whose  behalf  it  was  seized  and  libeled,  acquiesces  in  the  justness  of  the 
sentence,  and  files  no  appeal.  But  when  he  attempts  to  sue  the  officer  who  did 
him  the  injury,  a  State  court,  which  has  no  jurisdiction  over  the  question  of 
forfeiture,  declares  in  favor  of  the  lawfulness  of  the  seizure  and  right  of 
forfeiture,  and  thus  deprives  him  of  all  redress.  The  law  is  settled,  that  if 
goods  be  seized  by  a  custom  house  officer  and  are  libeled,  tried,  and  condemned 
in  a  court  having  cognizance  of  the  forfeiture,  and  the  seizing  officer  be  after- 
wards sued  in  trespass  for  taking  the  goods,  he  may  plead  that  condemnation  in 
bar  of  the  action.  The  question  then  is,  suppose  the  goods  to  be  seized,  tried, 
and  acquitted  in  the  District  Court,  and  the  officer  be  then  sued  for  seizing  the 
goods,  can  the  officer  contest  the  legality  of  the  seizure  over  again?  or  cannot 
the  owner  in  his  turn  set  up  the  sentence  of  acquittal  as  a  bar  to  that  inquiry  ? 
I  entertain  no  doubt,  it  is  equally  well  settled  as  the  other;  and  that  if  the 
condemnation  is  a  bar  to  the  action  on  the  one  hand,  the  acquittal  is  a  bar  to 
the  defense  on  the  other  "  (The  Chancellor  delivering  the  opinion  of  the  Court 
of  Errors  in  Gelston  v.  Hoyt,  13  Johns.  561). 

^  Murphy  v.  Tripp,  44  Barb.  189. 

*  In  an  action  for  injui'y  to  personal  property,  evidence  is  not  admissible 
of  damage  to  goods  not  mentioned  in  the  pleadings  (Whitmore  v.  Bowman,  4 
Greene,  Iowa,  148). 

t  In  Murphy  v.  Tripp,  supra,  the  court  said :   ' '  The  object  of  the  statute  is- 


§§  59G-598.  ATTENDANT  CIRCUMSTANCES.  617 

8.  Evidence  as  to  value. 

§  596.  The  plaintiff,  in  order  to  recoVer  more  than  nominal 
damages,  must  prove  the  value  of  tlie  property  taken,  or 
that  he  lias  sustained  some  special  damage.^ 

9.  Proof  of  time. 

§  597.  Although,  as  previously  stated,^  the  time  when 
the  trespass  was  committed  need  not  in  general  be  proved 
as  laid,  yet  if  the  party  in  pleading  time  refers  to  a  record, 
the  proof  must  correspond  with  the  record.  Where,  there- 
fore, in  an  action  of  trespass  de  bonis  asportatis.,  the  defendant 
pleaded  that  he  took  the  goods  as  collector  of  a  school 
district,  by  virtue  of  a  rate  bill  and  warrant,  and  averred 
that  he  was  elected  collector  of  the  district  on  a  certain  day, 
"  as  by  the  records  of  said  school  district  would  more  fully 
appear,"  and  the  records  showed  that  he  was  appointed  on  a 
different  day ;  it  was  held,  that  although  it  might  not  have 
been  necessary  to  refer  to  the  records,  yet,  having  done  so, 
the  variance  was  fatal.^ 

10.  Attenda/nt  circumstances. 

§  598.  The  attendant  circumstances  are  proper  subjects 
of  proof/  In  an  action  for  the  wrongful  seizure  of  the 
plaintiff's  goods  under  an  attachment,  it  was  held  that  the 
fact  that  the  plaintiff  was  broken  up  in  business,  and  reduced 
to  poverty  without  the  means  of  support,  was  admissible  to 

to  prevent  any  interference  with  the  paper  put  up  by  the  officer,  and  the  contents 
tliereof,  which  will  defeat  its  purpose;  that  is,  giving  notice  of  sale.  The 
circumstance  that  the  notice  had  beeu  accidentally  blown  down  after  the 
officer  had  posted  it,  and  was  lying  on  the  counter,  does  not  relieve  the  defend- 
ant, if  his  design  was  to  frustrate  the  purpose  of  the  officer,  and  to  prevent 
notice  of  sale  being  given;  and  that  such  was  his  design  the  jury  were 
warranted  in  finding,  from  the  facts  and  circumstances  presented  by  the  testimony. 
If  the  defendant,  with  such  design,  had  torn  off  a  material  part  of  the  notice 
and  carried  it  away,  he  would  have  been  literally  guilty  of  defacing.  He  is 
none  the  less  guilty  within  the  meaning  of  the  statute,  having  carried  away  the. 
whole  notice." 

'  Lay  V.  Bayless,  4  Cold.  Tenn.  246 ;  Burr  v.  Woodrow,  1  Bush,  Ky.  003. 

=  Ante,  §§  73,  96.  ''  M'Daniels  v.  Bucklin,  13  Vt.  279. 

*  Zimmerman  v.  Helser,  32  Md.  274;  Romaine  v.  Norris,  3  Ilalst.  80;  ante^ 
§05. 


618  REMEDY  FOR   WRONGFUL   TAKING  OF  PROPERTY.     §  599. 

sll0^v  special  damage.^  But  tlie  doctrine  that  tlae  circum- 
stances attending  a  trespass  may  be  given  in  evidence  in 
order  to  enhance  the  damages,  though  not  alleged  in  the 
declaration,  has  no  aj^plication  where  the  circumstances 
themselves  constitute  an  independent  cause  of  action ;  and 
the  fact  that  the  defendant,  in  protecting  his  own  property 
as  he  supposed,  injured  the  person  of  the  plaintiff,  is  not  an 
exception  to  the  rule,  where  there  is  no  allegation  of  personal 
injury.' 

11.  Intention. 

§  599.  Although  proof  of  motive. is  not  necessary  to  sus- 
tain an  action  for  taking  and  carrying  away  goods,  yet  with 
reference  to  the  question  of  damages,  the  intention  with 
which  the  act  was  committed,  is  sometimes  important."^  *  In 
Wood  V.  Morewood  *  it  is  said  to  have  been  held  by  Parke 
Baron,  in  an  action  of  trover  for  coals  taken,  that  if  the 
defendant  took  them  without  beino;  conscious  that  he  was 
doing  wrong,  they  might  be  estimated  as  if  they  were  to  be 
sold  by  the  plaintiff',  unsevered;  if  otherwise,  then  at  the 
price  they  would  be  worth  when  first  severed.  The  jury  re- 
turned the  former,  and  the  decision  was  acquiesced  in.  "  This 
seems  in  conflict  with  the  decisions  in  New  York,  but  shows 
the  leaning  of  the  mind  of  a  very  distinguished  jurist  to- 
wards the  equity  of  not  allowing  exemplary  damages  to  be 
recovered  against  one  not  conscious  of  doing  wrong,  when 
he  took  the  goods  of  another."  ^     In  an  action  for  taking  a 


'  Moore  v.  Scbultz,  31  Md.  418.  ""  Plumb  v.  Ives,  39  Conn.  120. 

'  White  Water  Valley  Canal  Co.  v.  Dow,  1  Smith,  Ind.  62 ;  HiUman  v. 
Baumbach,  21  Texas,  203. 

'  3  Add.  &  El.  N.  S.  440,  note. 

^  Whitman,  C.  J.,  Cushing  v.  Longfellows,  26  Maine,  306. 

*  Whether  or  not  persons  seizing  goods  exposed  for  sale  contrary  to  the 
statute  against  the  disturbance  of  religious  meetings  (Elm.  Dig.  Sts.  of  N.  J. 
458)  have  committed  a  trespass,  "will  depend  upon  the  intention  with  which  the 
goods  were  seized,  and  not  upon  the  subsequent  irregular  conduct  of  those  mak- 
ing the  seizure,  although  such  subsequent  conduct  might  be  given  in  evidence 
to  show  the  intent.  The  intention  in  such  case  being  for  the  jury  or  court  be- 
low to  determine,  it  cannot  be  reviewed  by  the  Supreme  Court  on  certiorari 
(Rogers  v.  Brown,  1  Spencer,  119). 


I 


§  599.  INTENTION.  619 

slave  from  the  plaintiif,  abusive  language  of  the  defendant 
to  the  plaintiff  at  the  time,  was  allowed  in  evidence  to  show 
quo  animo  the  act  was  done,  and  to  increase  the  damages.^ 
Churchill  v.  Watson  ^  was  an  action  of  trespass  for  taking  a 
stick  of  timber  belonging  to  the  plaintiff.  At  the  trial  in 
the  Circuit  Court,  the  taking  of  the  timber  by  the  defend- 
ant having  been  proved,  the  plaintiff,  in  order  to  show  the 
actual  damage  he  had  sustained,  offered  to  prove  the  follow- 
ing :  That  he  was  building  a  vessel,  and  had  procured  the 
timber  for  her  mast ;  that  there  was  no  other  spar  on  the 
Connecticut  river  suitable  for  a  mast  of  such  a  vessel ;  that 
this  was  well  known  to  the  defendant ;  that  the  taking  of  the 
spar  by  the  defendant  was  malicious,  and  with  intent  to  ob,- 
struct  the  plaintiff',  and  prevent  his  building  and  completing 
the  vessel;  and  that,  in  consequence  of  the  taking,  the 
plaintiff'  was  greatly  obstructed  in  building  his  vessel,  and 
prevented  from  completing  the  same.  The  judge,  however, 
rejected  this  evidence,  and,  in  charging  the  jury,  adopted  the 
principle  that  damages  were  to  be  given  for  the  value  of  the 
property  with  interest,  and  presumptive  damages  for  the 
force  only,  without  taking  into  consideration  any  of  the  ag- 
gravating circumstances  attending  the  trespass,  or  the  actual 
damage  which  the  plaintiff  had  sustained.  The  Supreme 
Court,  in  delivering  the  opinion  granting  a  new  trial,  in 
which  all  the  judges  concurred,  said:  "The  jury  ought  to 
have  taken  into  consideration,  in  assessing  the  damages,  that 
the  taking  by  the  defendant  was  malicious,  and  with  intent 
to  obstruct  the  plaintiff'  and  to  prevent  the  building  of  his 
vessel ;  and  all  the  circumstances  attending  the  transaction 
ought  to  have  been  heard  and  considered.  If  the  defendant, 
in  a  quarrelsome  manner,  had  interfered  with  the  building  of 
the  vessel,  and  by  threats  had  attempted  to  induce  the 
plaintiff  to  desist,  and  failing  in  this,  and  knowing  that  no 
other  spar  could  be  obtained,  and,  with  a  view  to  prevent  the 
building  of  the  vessel,  had  taken  it  away  forcibly,  or  wantonly 

'  Ratliff  V.  Huntley,  5  Iredell,  545.  »  5  Day,  140. 


020  EEMEDY   FOR  WRONGFUL  TAKING  OF   PROPERTY.     §  602. 

destroyed  it,  a  jury  might  give  a  larger  sum  in  damages  tlian 
they  would  do  had  it  been  taken  under  a  mistaken  apprehen- 
sion of  the  rights  of  the  parties." 

§  600.  To  make  loss  of  credit  admissible  in  evidence,  in 
an  action  of  trespass  for  seizing  and  detaining  the  plaintiff's 
goods,  it  must  be  shown  to  be  intimately  connected  with 
the  act  complained  of,  and  to  have  been  done  with  an  ag- 
gravating and  malicious  intention  to  injure  the  party  com- 
plaining.-* 

12.  Presu^nptions. 

§  601.  We  have  heretofore  spoken  of  the  presumption  of 
fraud  in  the  absence  of  explanation,  where  goods  sold  are 
left  in  the  possession  of  the  vendor.^  In  an  action  of  trespass 
for  taking  goods,  the  defendant  pleaded  that  the  goods  did 
not  belong  to  the  plaintiff,  in  manner  and  form  as  alleged. 
The  plaintiff'  proved  that  he  had  purchased  them  of  the 
sheriff'  under  an  execution  issued  against  one  Brennan.  The 
defendant  proved  that  lie  had  subsequently  taken  them  in 
execution  as  the  goods  of  Brennan,  they  being  at  the  time  in 
Brennan's  possession.  It  was  held,  that  this  evidence  was 
admissible,  and  that  it  was  proper  for  the  judge  to  leave  it 
to  the  jury  to  say  whether  the  previous  sale  to  the  plaintiff 
was  hona  fide  or  fraudulent.^ 

§  602.  Evidence  that  a  party  has  on  one  occasion  com- 
mitted an  offense,  is  incompetent  to  show  that  he  subse- 
quently committed  a  distinct  offense  of  a  similar  nature, 
except  in  a  few  cases  where  guilty  knowledge  or  intention  is 
of  the  essence  of  the  charge.  Therefore,  in  an  action  against 
an  officer  for  seizing,  under  the  statute,  a  conveyance  used  in 
the  transportation  of  intoxicating  liquors,  the  defendant  will 
not  be  permitted  to  prove  that  the  plaintiff,  prior  to  the 
enactment  of  the  statute  and  for  several  years  previous,  was 


'  Thomas  v.  Isett,  1  Iowa,  470.  '  Ante,  §  oG2. 

'  Ashley  v.  Mionett,  3  Nev.  &  P.  231 ;  8  Ad.  &  E.  131 ;  2  Jnr.  888. 


§  G02.  PRESUMPTIONS.  021 

engaged  in  illegal  traffic  in  intoxicating  spirits,  such  evidence 
having  no  logical  or  legal  tendency  to  prove  any  matter  in 
issue  at  the  trial.^     But  where  an  individual  in  failing  cir- 
cumstances is  proved  to  have  disposed  of  large  portions  of 
his  property  by  fraudulent  sales,  to  defeat  or  delay  creditors, 
it  tends  to  show  a  similar  fraudulent  intent  on  his  part  as  to 
the  disposition  of  any  remainder  of  his  property  he  may 
attempt  to  put  out  of  his  hands  at  or  about  the  same  time. 
Such  evidence,   however,  does  not    affect   the   vendee,  but 
merely  shows  a  fraudulent  intent  on  the  part  of  the  vendor. 
To  affect  the  vendee,  it  must  be  shown  that  he  knew  and 
participated  in  the  intent.     Blake  v.  White  ~  was  an  action 
of  trespass  for  taking  two  horses  alleged  to  be  the  property 
of  the  plaintiff.     The    defendant  denied  that  the  plaintiff 
owned  the  horses,  and  contended  that  they  belonged  to  one 
James  L.  Blake,  a  brother  of  the  plaintiff,  as  the  property  of 
whom  they  were  attached  on  mesne  process,  and  sold  on  ex- 
ecution.     Evidence  was  offered  that  the  horses  were  pur- 
chased  by  James  L.  Blake  with  money  furnished  him  for 
that  purpose  by  Oliver  Blake,  the  plaintiff,  and  that  the 
horses,  after  the  purchase,  were  appraised  to  Oliver  in  pay- 
ment of  the  money  advanced  by  him.     It  was,  however,  con- 
tended by  the  defendant  that  this  was  merely  a  fraudulent 
arrangement  for  the  cover  of  property,  and  that  the  purchase 
was  in  fact  made  with  James  L.  Blake's  means,  and  for  his 
"use.     It  was  held,  that  the  entire  business  transactions  be- 
twixt James  and  Oliver  in  relation  to  other  property  was 
clearly  competent,  as  showing  a  general   design  on  their  part 
to  obstruct  and  delay  the  creditors  of  James.^  * 


'  Kent  V.  Willey,  11  Gray,  368.  '  13  N.  Hamp.  267. 

'  See  Foster  v.  Hall,  12  Pick.  89 ;  Bridge  v.  Eggleston,  14  Mass.  245 ;  Hawes 
V.  Dingley,  5  Shepl.  341;  Howe  v.  Reed,  3  Fairf.  515;  Lovell  v.  Briggs,  2  N. 
Hamp.  233;  Flagg  v.  Willington,  6  Greenl.  386;  Wliittier  v.  Varuey,  ION. 
Hamp.  291. 

*  Where,  in  an  action  of  trespass  de  honis  asportatis  by  the  vendee  of  goods, 
the  plaintiff  makes  the  vendor  a  witness  to  prove  that  they  belong  to  tlie  phiintiff, 
the  acts  and  declarations  of  tlie  witness,  after  he  parted  with  his  interest,  are  ad- 
missible to  discredit  him,  but  not  as  evidence  of  property  in  the  witness  (Fiske 
V.  Small,  25  Maine,  455). 


622         REMEDY  FOR  WRONGFUL  TAKING  OF   PROPERTY.     §  604. 

§  603.  Where  personal  property  is  wrongfully  seized  by 
an  officer,  a  slight  circumstance  will  sometimes  raise  a  pre- 
sumption that  the  seizure  was  made  by  direction  of  the  party 
for  whom  the  officer  acted.  An  attorney  indorsed  a  writ  of 
Ji.  fa.  as  follows :  "  The  defendant  resides  at  W.,  and  is  an 
innkeeper."  L.  (defendant  in  that  suit)  resided  at  W.  and 
conducted  the  business  of  A.,  who  was  his  mother-in-law,  and 
kept  an  inn  there,  and  the  goods  on  the  premises  were  her 
property.  The  sheriff  having  seized  A.'s  goods  at  the  inn, 
under  the  fi.  fa..,  it  was  held,  that  there  was  evidence  to  go  to 
the  jury  that  the  attorney  directed  the  sheriff  to  seize  the 
goods,  and  to  make  him  liable  in  trespass.^  In  the  following 
case,  the  circumstance  relied  upon  was  deemed  insufficient : 
Two  attorneys  issued  a  precept  on  a  judgment  recovered  in  a 
local  court  to  the  bailiff,  and  indorsed  their  names  on  it. 
They  knew  the  residence  of  the  defendant,  and  one  of  them 
sent  him  word  that  the  levy  would  not  be  made  on  a  par- 
ticular day.  The  bailiff,  while  executing  the  levy,  stated 
that  he  was  employed  by  the  attorneys.  The  defendant's 
house  being  without  the  jurisdiction,  he  brought  an  action 
against  the  bailiff  and  the  attorneys,  who  severed  in  their 
pleas,  and  pleaded  the  general  issue  and  a  justification  under 
the  process.  It  was  held,  that  there  was  not  sufficient  evi- 
dence to  show  that  the  attorneys  authorized  the  illegal  execu- 
tion of  the  writ,  independently  of  the  special  plea,  and 
therefore  that  they  were  entitled  to  a  verdict  of  acquittal  on 
the  general  issue.^ 

§  604.  The  fact  that  a  persou  has  caused  goods  to  be 
attached  will  not  estop  him  from  showing  that  the  goods 
were  at  the  time  in  reality  his  property.  In  an  action  of 
trespass  for  taking  and  carrying  away  a  certain  wagon,  it  ap- 
peared that  the  defendant  kept  the  wagon  ten  days,  when 
the  plaintiff  caused  it  to  be  attached,  and  that  the  officer, 
upon  attaching    it,  delivered  it  to  the   hired   man   of  the 

'  Bowles  V.  Senior,  15  L.  J.  N.  S.  231 ;  10  Jiir.  354. 

'  Sowell  V.  Champion,  2  Nev.  &  P.  627;  6  Ad.  &  E.  407. 


§  605.  PRESUMPTIONS.  623 

plaintiff,  who  placed  it  under  the  plaintiff's  shed,  where  it 
had  ever  since  remained.  It  was  held,  that  the  wagon  was 
not  to  be  deemed,  as  matter  of  law,  to  have  been  transferred 
to  the  plaintiff  at  the  time  it  was  attached  and  placed  nnder 
his  shed ;  and  that  the  plaintiff,  by  causing  the  wagon  to  be 
attached,  was  not  estopped  from  claiming  that  he  had  title  to 
it  when  it  was  taken  from  his  possession  by  the  defendant.^  * 
So,  likewise,  a  person  by  attaching  goods  as  the  property  of 
another,  will  not  be  estopped  from  proving  that  they  belong 
to  a  third  party.^  In  an  action  of  trespass  against  an  officer 
for  taking  and  carrying  away  certain  goods,  it  was  objected 
that  the  goods  were  taken  by  the  defendant  by  virtue  of  a 
writ  against  the  plaintiff,  and  were  attached  as  his  property, 
and  therefore  that  the  defendant  was  estopped  to  deny  that 
they  were  the  plaintiff's  property.  But  it  was  held  other- 
wise. For  if  the  attachment  was  made  by  mistake,  suppos- 
ing the  goods  to  be  the  plaintift^'s  property  when  they  were 
not,  there  could  be  no  reason  why  the  plaintiff  should  be 
entitled  to  an  action  for  taking  property  to  which  he  had  no 
title.^ 

§  605.  It  is  of  the  essence  of  an  estoppel  in  pais  that  the 
party  claiming  the  benefit  of  the  estoppel  relied  on  the  decla- 
rations of  the  other  party  as  true,  and  was  thereby  induced 

'  Lewis  V.  Morse,  30  Conn.  211.  =  Loomis  v.  Green,  7  Maine,  386. 

'  Roberts  v.  Wentwortb,  5  Cush.  193. 

*  In  this  case  the  court  said:  "The  effect  of  the  attachment  was  not  to  re- 
store the  property  to  the  plaintiff,  or  estop  him  from  asserting  his  previous  own- 
ership. By  the  attachment,  the  wagon  was  taken  into  the  custody  of  the  law, 
and  upon  the  termination  of  the  suit  it  would  be  the  duty  of  the  officer  to  treat 
it  as  any  other  property  of  the  defendant  seized  under  the  same  process.  The 
defendant  might  at  any  time  regain  possession  of  the  wagon  by  a  writ  of  re- 
plevin ;  and  so  long  as  it  was  holden  under  the  attachment  it  is  immaterial  in 
what  place  it  is  kept  by  the  officer.  The  mere  circumstance  that  it  was  placed 
for  safe  keeping  upon  the  plaintiffs  premises  makes  no  difference,  as  it  was  still 
in  the  custody  of  the  law.  Had  it  appeared  that  the  plaintiff,  availing  himself 
of  the  situation  of  the  property,  had  resumed  his  possession,  the  defendant 
might  have  waived  his  title  and  shown,  in  mitigation  of  damages,  that  the  prop- 
erty had  gone  back  into  the  plaintiff's  possession.  But  that  does  not  appear  to 
have  been  done.  Had  the  property  been  in  fact  restored  to  the  plaintiff,  the 
proper  damages  would  have  been  those  occasioiied  by  the  taking  and  detention 
merely.  But  as  there  was  no  evidence  of  any  such  restoration  of  the  property, 
we  see  not  why  the  plaintiff  is  not  entitled  to  a  verdict  for  its  value." 


C24         REMEDY  FOR  WRONGFUL   TAKING   OF   PROPERTY.     §606. 

to  act  differently  from  what  he  otherwise  would  ;  so  that  he 
will  be  prejudiced  by  the  other  party's  being  permitted  to 
prove  the  fact  different  from  what  he  has  declared  it  to  be. 
Therefore,  in  an  action  of  trespass  for  taking  a  cow,  it  was 
held,  that  the  plaintiff'  was  not  esto2:)ped  by  his  admission  to 
the  attorney  of  the  attaching  creditor,  subsequent  to  the 
attachment  and  before  the  sale,  that  the  plaintiff  owned  the 
cow,  because  such  attachment  and  taking  were  not  made  on 
the  faith  of  the  admission.^  So,  likewise,  in  an  action  of 
trespass  against  a  deputy  sheriff  for  seizing  property  under 
an  attachment  which  was  not  sustained,  it  was  held,  that  the 
plaintiff  was  not  estopj)ed  to  show  that  he  owned  the  prop- 
erty, although  at  the  time  of  the  attachment  he  was  in  em- 
barrassed circumstances,  and  stated  on  several  occasions  that 
]io  part  of  the  property  belonged  to  him,  such  declarations 
not  having  affected  either  j^arty.  If  the  declarations  of  the 
plaintiff  had  been  acted  on,  it  would  have  been  different. 
But  the  case  showed  that  the  admissions,  although  made 
with  a  view  to  influence  the  conduct  of  the  defendant,  did 
not  in  fact  influence  it.^ 

13.  Evidence  in  justification. 

§  606.  The  taking  being  proved,  it  is  for  the  defendant 
to  justify  an  act  wh\ch  2yrima  facie  is  a  trespass.  When  the 
answer  in  effect  admits  property  in  the  ]3laintiff  and  a  taking 
by  the  defendant,  the  case  is  prima  facie  for  the  plaintiff, 
and  entitles  him  to  a  verdict  unless  the  defendant  proves  a 
justification.  If  the  defendant  allege  authority  as  an  ofiicer 
to  seize  the  property  in  controversy,  it  is  a  defense  in  the 
nature  of  an  avoidance  of  the  plaintiff's  claim  for  damages. 
The  whole  issue  is  then  on  the  justification  set  up  in  the 
answer,  and  it  is  incumbent  on  the  defendant  to  go  forward 
and  establish  his  defense.^     Woodbridge  v.  Conner*  was  an 

'  Robinson  v.  Hawkins,  38  Vt.  693.  '  Wallis  v.  Truesdell,  6  Pick.  455. 

'  Kent  V.  Willey,  11  Gray,  3G8;  1  Greenlf.  Ev.  635,  639. 
*  49  Maine,  353. 


§  607.  EVIDENCE   IN    JUSTIFICATION.  G25 

action  of  trespass  for  seizing  and  selling  a  wagon  of  the 
plaintiff.  A  witness  called  by  the  plaintiff  testified  that 
having  tax  bills  and  a  warrant  in  his  hands,  the  defendant 
informed  witness  that  the  plaintiff  had  said  he  hould  not 
pay  his  tax,  and  that  the  defendant  then  directed  the  wit- 
ness if  the  plaintiff'  wonld  not  pay  the  tax  to  seize  the  prop- 
,erty.  There  was  no  proof  that  the  witness  was  a  collector 
of  taxes.  "What  taxes  were  assessed,  or  what  warrant  for 
their  collection  was  issued,  did  not  appear.  The  judge  re- 
marked that  as  the  defendant,  if  he  had  a  justification,  had 
studiously  avoided  disclosing  it,  it  was  not  for  the  court  to 
presume  its  existence.  So,  where  an  action  was  brought  by 
the  assignees  of  an  insolvent  debtor  against  an  officer  for 
taking  and  carrying  away  personal  property  of  the  debtor  in 
their  possession  under  an  attachment  issued  against  the  debtor 
in  favor  of  A.  and  others,  the  defendant  offered  to  prove  that 
the  assignment  to  the  plaintiffs  was  fraudulent  and  void  as 
to  creditors ;  it  was  held  that  it  was  incumbent  upon  the 
defendant  to  prove  that  A.  and  others  were  creditors  of  the 
debtor,  and  that  the  property  was  seized  upon  legal  proceed- 
ings brought  by  them.^ 

§  607.  If  the  trespass  be  justified  under  civil  or  criminal 
process,  the  defendant  must  prove  every  material  fact  of  the 
authority  under  which  he  justifies.^  Accordingly,  where  in 
an  action  of  trespass  the  plaintiff"  called  one  of  the  de- 
fendants, who  testified  to  the  taking,  and  that  it  was  done 
under  a  road  warrant,  it  was  held  that  this  statement  con- 
stituted no  defense,  but  that  the  warrant  itself  should  have 
been  produced.'^  When  goods  taken  by  an  officer  are  claimed 
by  a  person  who  was  not  a  party  to  the  suit,  and  the  latter 
brings  trespass,  and  his  title  is  contested  on  the  ground  of 
fraud,  a  judgment  must  be  shown  if  the  officer  justifies  under 
an  execution,  or  a  debt  if  under  a  writ  of  attachment,  be- 
cause it  is  only  by  showing  that  the  officer  acted  for  a  cred- 

'  Cross  V.  Phelps,  IG  Barb.  502.        "  Batchekler  v.  Currier,  45  N.  Ilamp.  460. 
'  Mcricle  v.  Mulks,  1  Wis.  3GG. 
Vai..  I.— 40 


626         REMEDY  FOB  WEONGFUL   TAKING   OF   PROPERTY.     §  607. 

itor  that  lie  can  question  the  title  of  the  vendee.^  *  But  if  the 
court  is  satisfied  that  there  was  a  fraudulent  transfer  of  the 
property  of  the  plaintifl:',  and  that  consequently  he  liad  no 
right  of  action,  it  will  not  grant  a  new  trial  after  verdict  for 
the  defendant,  though  the  record  of  the  judgment  was  not 
given  in  evidence.^  Where  the  defendant  justifies  under  the 
judgment  and  execution  of  a  justice  of  the  peace,  he  must 
prove  that  such  person  is  a  justice.'^  But  it  seems  to  have 
been  doubted  whether,  in  an  action  of  trespass  against  an 
officer  for  taking  the  property  of  the  plaintiff  under  an  at- 
tachment issued  by  a  justice  of  the  peace  against  another 
person,  it  is  necessary  for  the  defendant  to  prove  the  prelim- 
inary proceedings  in  order  to  show  the  jurisdiction  of  the 
justice  and  the  regularity  of  the  attachment.^  f 


^  Bac.  Abr.  Trespass,  G,  1;  Bull.  N.  P.  91,  234;  Martyn  v.  Podger,  5  Burr. 
2631;  Lake  v.  Billers,  1  Ld.  Raym.  733;  Ack worth  v.  Kempe,  Doug.  41;  Savage 
V.  Smith,  2  W.  Bl.  1104;  Damon  v.  Bryant,  2  Pick.  411;  Parker  v.  Walrod,  16 
Wend.  514;  affg.  s.  c.  13  lb.  296;  Simpson  v.  Watrus,  3  Hill,  619;  Gelhaar  v. 
Ross,  1  Hilton,  117;  Candee  v.  Lord,  2  Comst.  269;  Hall  v.  Stryker,  27  N.  Y. 
596;  Cook  v.  Miller,  11  111.  610;  Sexey  v.  Adkinson,  34  Cal.  346. 

=  High  V.  Wilson,  2  Johns.  46.     See  Dixon  v.  Watkins,  4  Eng.  Ark.  139. 

'  Hunter  v.  Harris,  4  Blackf.  126.  ■*  Parker  v.  Walrod,  supra. 

*  The  judgment  is  the  best  evidence  of  the  relation  of  creditor  and  debtor, 
and  no  other  evidence  in  such  a  case  will  be  received.  Upon  the  production  of 
such  evidence,  the  sheriff,  as  defendant,  or  any  one  having  a  right  to  avail  him- 
self of  the  judgment  and  execution,  may  raise  and  litigate  the  question  of  fraud- 
ulent sale  hy  the  judgment  debtor  to  the  plaintiff.  The  judgment  establishes 
conclusively  the  relation  of  creditor  and  debtor,  and  all  are  bound  by  it.  But 
in  an  action  against  a  sheritl  for  wrongfully  seizing  goods  by  virtue  of  an  attach- 
ment, the  defendant  may  prove,  even  before  judgment  in  attachment,  that  the 
sale  of  the  goods  to  the  plaintiff  was  fraudulent  and  void  as  against  the  attaching 
creditors-(Rinchey  v.  Stryker.  31  N.  Y.  R.  140).  In  Thayer  v.  Willet,  5  Bosw. 
844,  it  was  held  that  a  sheriff  acting  under  a  warrant  of  attachment  issued  as  a 
provisional  remedy,  under  the  Code  before  judgment,  who  has  seized  property  in 
the  possession  of  a  vendee  claiming  title  under  a  bill  of  sale  from  the  defendant 
in  the  attachment,  may  show,  in  defense  of  an  action  against  him  by  such  vendee 
to  recover  the  property,  that  the  alleged  sale  was  fraudulent  as  against  the  attach- 
ing creditor.  And  see  to  the  same  effect  Skinner  v.  Oettiuger,  14  Abl).  109; 
Patterson  v.  Perry,  10  lb.  82;  Belmont  v.  Lane,  22  How.  Pr.  R.  365;  Kelly  v. 
Breusing,  33  Barb.  123. 

t  Where  in  trespass  for  taking  tlie  plaintiff's  goods,  not  guilty  is  pleaded,  and 
the  plaintiff  proves  that  the  defendant,  an  attorney,  delivered  a  Ji.  fa.  to  the 
sheriff,  who  thereupon  took  the  goods,  whether  the  defendant  may  give  in  evi- 
dence a  judgment  on  which  the  fi.  fa.  issued,  qumre  (Rundle  v.  Little,  6  Q.  B.  174). 

The  validity  of  an  execution  under  afi.  fa.  cannot  be  impeached  at  7iis>,  priua, 
on  the  ground  that  the  judgment  ought  to  have  been  revived  i)y  scire  fnciis,  or 
that  there  was  an  irregularity  in  the  return  of  the  writ  (llabberton  v.  Wakefield, 
4  Camp.  58). 


§§  608,  609.  EVIDENCE   IN  JUSTIFICATION.  627 

§  608.  The  officer  cannot  prove  by  parol  that  he  had  a 
legal  warrant,  or  that  he  served  it  as  directed  by  the  statute, 
but  must  show  by  his  return  what  he  did  under  it  in  order 
that  the  court  may  see  whether  or  not  his  acts  are  justified.^ 
In  Purrington  v.  Loring,^  which  was  an  action  of  trespass  for 
taking  and  carrying  away  the  plaintiffs  goods,  the  defendant 
pleaded  that  he  took  the  goods  as  deputy  sheriff  under  war- 
rants of  distress  against  the  plaintiff.  An  objection  to  the 
defendant's  justification  was,  that  it  appeared  from  his  return 
upon  the  warrants  of  distress  on  which  the  chattels  were 
seized,  that  he  sold  them  after  having  advertised  the  time 
and  place  of  sale  twenty-four  hours.  As  by  the  statute  it 
was  the  duty  of  the  defendant  to  advertise  four  days  before 
the  sale,  it  was  admitted  that  the  objection  was  fatal  unless 
the  defendant  could  be  admitted  to  prove  by  parol,  notwith- 
standing his  return,  that  he  in  fact  advertised  the  time  and 
place  four  days  before  the  sale.  But  it  was  held  that  parol 
evidence  for  this  purpose  was  not  admissible.  * 

§  609.  As  the  law  makes  the  sheriff  a  certifying  officer 
of  his  own  doings  upon  precepts  which  are  put  into  his 
hands  for  service,  his  return  is  evidence  of  such  official  acts 
as  are  required  by  the  writ  to  be  performed,  but  not  of  facts 
to  excuse  their  non-performance.  In  relation  to  the  latter,  it 
is  simply  prima  facie  evidence  and  may  be  disproved.^     In 

'  Williams  v.  Ives,  35  Conn.  568.  ^  7  Mass.  388. 

^  Browning  v.  Hanford,  5  Denio,  586;  reversing  s.  c.  7  Hill,  130;  s.  c.  5  Hill, 
588;  Hatliaway  v.  Goodrich,  5  Vt.  65;  Stanton  v.  Hodges,  6  lb.  64;  Gyfford  v. 
Woodgate,  11  East,  397. 

*  In  Purrington  v.  Loring,  supra,  the  court  said:  "The  officer's  return  must 
be  in  writing,  and  when  made  upon  his  precept  and  regularly  returned,  it  must 
be  presumed  to  be  true  until  the  falsity  of  it  be  proved.  He  cannot  therefore 
justify  by  a  parol  return  when  it  is  his  duty  to  return  his  doings  in  writing. 
And  it  may  be  furtiier  observed,  that  the  owner  of  the  goods  taken  has  no  regu- 
lar means  of  knowing  whether  the  officer  has  done  his  duty  other  than  by  in- 
specting his  return,  and  if  the  return  may  be  exphiined,  or  another  return  proved 
by  paiol,  this  means  may  be  useless.  And  it  may  be  added,  that  if  parol  evi- 
dence was  admissible  there  would  be  great  danger  of  fraud  and  perjury.  But 
the  officer  by  doing  his  duty  in  returning  truly  his  proceedings  indorsed  on  his 
prece|)t  is  liable  to  no  inconvenience  if  he  has  acted  legally,  and  if  he  has  not, 
he  ought  not  to  be  protected  by  a  false  return,  whether  in  writing  or  by  parol." 

Where  defects  in  process,  or  in  the  return  of  an  officer,  are  merely  formal, 
they  must  be  objected  to  by  plea  in  abatement,  or  they  will  be  cured  (Kelly  v. 
Paris,  10  Vt.  261). 


628  REMEDY   FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  610. 

an  action  of  trespass  against  an  officer  for  taking  and  carry- 
ing away  a  wagon,  the  defendant  justified  under  a  writ  of 
attachment,  and  the  plaintiff  claimed  that  the  attachment 
was  served  on  Sunday  and  therefore  illegal.  It  was,  how- 
ever, held  that  the  officer's  return  that  the  attachment  was 
served  on  Saturday  was  conclusive.^  Marble  v.  Keyes  ^  was 
an  action  against  an  officer  for  attaching  and  holding  the 
plaintiff's  goods  under  a  writ  against  one  Bailey,  wlio  had 
the  custody  of  tlie  goods.  The  plaintiff  proved  that  the 
goods  were  attached  as  the  property  of  Bailey,  and  a  keeper 
placed  over  them.  He  also  introduced  in  evidence  the  writ 
against  Bailey,  with  the  return  of  the  officer  thereon  that  he 
had  attached  the  goods,  and  pursuant  to  an  application  by 
the  plaintiff  in  the  writ  had  caused  the  property  to  be  ap- 
praised and  sold.  The  defendant  objected  that  this  evidence 
was  not  sufficient  to  prove  a  taking  upon  which  to  maintain 
the  action.     But  it  was  held  otherwise. 

§  610.  Between  the  parties  and  those  claiming  under 
them  as  privies,  and  all  others  whose  rights  and  liabilities 
are  dependent  upon  the  suit,  as  bail  and  indorsers,  the  return 
of  the  officer  of  matters  material  to  be  returned,  cannot  be 
contradicted  for  the  purpose  of  invalidating  the  officer's 
proceedings  or  defeating  any  right  acquired  under  them.^  * 

'  Brown  v.  Davis,  9  N.  Hamp.  76.  ^  9  Gray,  219. 

=  Messer  v.  Bailey,  31  N.  Hamp.  18;  Johnson  v.  Stone,  40  lb.  197. 

*  Where  a  warrant  is  returned,  to  have  been  posted  at  a  house  of  public 
worship,  it  will  be  prima  facie  taken  to  be  a  pul)lic  place,  and  the  party  who 
objects  that  from  the  character  of  the  town  or  of  the  house,  it  is  not  properly 
to  be  so  considered,  is  bound  to  show  the  grounds  of  his  objection  (Scammon  v. 
Scammon,  8  Fost.  419). 

Stanton  v.  Hodges,  6  Vt.  64,  was  an  action  of  trespass  for  taking  hay  and 
grain,  which  the  plaintiff  as  deputy  sheriff,  having  attached  on  a  writ  against 
the  defendant,  had  left  in  the  possession  of  the  defendant,  and  which  the  latter, 
after  such  attachment,  had  taken  and  used.  The  plaintiff's  return  showed  an 
attachment  of  all  the  hay  and  grain  in  the  defendant's  barn.  The  defendant 
proved  that  he  had  a  new  barn  containing  hay  and  grain,  and  an  old  barn  contain- 
ing hay  only;  and  he  insisted  that  the  return  was  void  for  uncertainty,  and  that 
therefore  the  plaintiff  could  not  recover.  CoUamer,  J.:  ''The  return  contains 
no  patent  ambiguity,  and  was  therefore  not  void.  If  any  ambiguity  was  created 
by  the  proof  put  in  by  the  defendant,  it  was  latent,  and  subject  to  explanation 
by  proof,  and  to  be  made  a  question  to  the  jury.  But  the  proof  did  not  produce 
even  a  latent  ambiguity.  The  attachment  was  of  hay  and  grain  in  the  same 
barn;  and  proving  that  the  defendant  had  another  barn  containing  hay  only,  no 


§  611.  EVIDENCE    IN    JUSTIFICATION.  629 

§  611.  The  return  of  an  officer  that  he  had  attached 
personal  property,  does  not  necessarily  imply  that  he  took 
the  property  so  as  to  make  him  a  trespasser,  if  the  attach- 
ment should  fail.  Cases  may  be  supposed  in  which  evidence 
to  disprove  such  an  inference  might  be  admissible.  If,  for 
instance,  an  attachment  were  returned  at  the  request  of  the 
owner  of  the  property,  in  order  to  give  a  preference  to  a 
favored  creditor,  the  officer  could  not  be  charged  as  a  tres- 
passer; iov  volenti  non  fit  injuria.  So,  if  an  officer  returns 
an  attachment  without  removing  the  property,  leaving  it  in 
the  possession  of  the  debtor  at  his  request,  the  attachment 
may  be  good  for  some  purposes,  as  it  would  render  him 
liable  to  the  creditor,  and  would  authorize  him  afterward  to 
take    possession  of  the   proj^erty.     Evidence    therefore    to 


more  created  ambiguity,  than  proving  that  he  had  another  barn  containing 
neither  hay  nor  grain.  The  identity  related  to  the  hay  and  grain ;  not  to  the 
barns." 

In  Putnam  v.  Man,  3  Wend.  203,  the  question  arose  -whether  where  a 
constable  serves  a  summons  in  his  own  favor,  issued  by  a  justice  of  the  peace, 
the  return  made  by  the  constable  upon  the  summons  could  be  impeached  in  an 
action  of  trespass.  The  Supreme  Court  in  deciding  in  the  negative,  said:  "I 
am  inclined  to  think  the  constable's  return  upon  the  summons  was  not  traversable 
in  this  action.  The  return,  though  false,  gave  the  justice  jurisdiction  of  the 
person  of  the  defendant ;  for  the  act  provides  that  the  constable  serving  the 
summons  shall,  ujion  the  oath  of  his  office,  return  thereupon  the  time  and  manner 
of  executing  the  same,  and  sign  his  name  thereto;  and  in  case  the  defendant 
does  not  appear  at  the  time  and  2ilace  appointed  in  such  summons,  and  it  shall 
appear  by  the  return,  indorsed  thereon,  that  the  summons  was  personally  served, 
the  justice  shall  then  proceed.  The  return  of  the  constable  is  the  evidence 
upon  which  the  statute  authorizes  and  requires  the  justice  to  proceed.  He 
must  therefore  obtain  jurisdiction  of  the  defendant's  person  by  virtue  of  the 
return;  and  the  judgment  which  may  be  subsequently  rendered  will  protect 
the  magistrate,  the  party  and  the  officer  who  may  be  instrumental  in  enforcing 
it.  The  constable's  return  is  conclusive  against  the  defendant  in  the  cause  in 
which  it  is  made.  He  cannot  traverse  the  truth  of  it  by  a  plea  in  abatement  or- 
otherwise;  but  if  it  l)e  false,  the  defendant's  remedy  is  in  an  action  against  the 
constable  for  a  false  return.  That  the  individual  who  made  the  false  return 
was  tlie  plaintiff  in  the  suit,  cannot,  that  I  perceive,  alter  the  case.  The  party 
injured  has  a  perfect  remedy  by  an  action  for  the  false  return;  or  if  the  de- 
fendant acted  wilfully  and  corruptly,  he  might  probably  be  punished  criminally, 
on  an  indictment  for  a  misdemeanor  "  (citing  Wheeler  v.  Lampmau,  14  Johns. 
481). 

That  a  plaintiff,  being  a  constable,  can  legally  serve  a  summons  in  his  own 
favor,  was  decided  in  Tuttle  v.  Hunt,  2  Cowen,  436,  where  it  was  held  that  a 
plaintiff  in  a  justice's  court  might  serve  his  own  summons,  either  where  he  was 
himself  a  constable,  or  was  specially  deputed  for  the  purpose,  in  analogy  to  the 
case  of  a  capias  where  no  bail  is  required,  which  may  be  served  by  the 
sheriff  wlien  he  is  plaintiff,  or  by  any  other  plaintiff,  by  special  deputation 
(s.  V.  Putnam  v.  Man,  3  Wend.  203;  and  see  Bennet  v.  Fuller,  4  Johns.  486). 


G30         REMEDY  FOR  WRONGFUL    TAKING  OF   PROPERTY.    §  613. 

show  that  in  fact  the  officer  did  not  remove  the  property, 
would  not  necessarily  contradict  the  return.^ 

§  612.  Where  the  statute  does  not  direct  that  the  officer 
shall  make  a  return,  such  return  will  not  be  legal  evidence 
in  his  behalf.  What  credit  is  to  be  given  to  the  certificate 
of  an  officer  who  is  not  required  by  law  to  certify  his  doings, 
was  considered  by  the  Supreme  Court  of  New  Hampshire  in 
Davis  V.  Clements.^  In  that  case,  the  plaintiff  brought  an 
action  of  trespass  against  the  defendant  for  taking  the 
plaintiff's  cattle.  The  defendant  j^leaded  in  bar,  that  he 
was  surveyor  of  highways,  and  took  the  cattle  as  a  distress 
for  non-payment  of  highway  taxes.  The  plaintiff  replied 
that  the  defendant  of  his  own  wrong,  &c.,  took  the  cattle. 
It  was  proved  on  the  trial,  that  the  defendant  w^as  duly 
chosen  surveyor  of  highways,  and  had  in  his  hands  for 
collection  highway  taxes  against  the  plaintiff,  and  a  warrant 
to  collect  the  same  ;  and  in  order  to  show  that  his  proceed- 
ings in  distraining  the  cattle  were  regular,  he  offered  in 
evidence  a  certified  return  of  his  doings  indorsed  on  the 
warrant.  It  was  held,  that  as  the  law  had  not  made  it  the 
duty  of  a  surveyor  of  highways  to  make  a  return,  it  was  no 
better  evidence  for  him  than  his  own  confessions  and 
declarations  would  have  been,  and  was  therefore  clearly 
incompetent.  And  a  similar  decision  was  made  in  an  early 
case  in  Vermont,  in  relation  to  the  certificate  of  a  collector 
of  taxes.^ 

§  613.  If  there  be  a  plea  of  duress,  the  defendant  must 
prove  that  he  had  no  reasonable  means  of  escaping  from  the 
force  or  fear  after  they  were  applied  to  him,  and  before  the 
goods  M^ere  taken  away.^  Accordingly,  where  in  an  action 
of  trespass  for  taking  the  jolaintiff 's  horse,  the  defendants, 
who  were  soldiers  in  the  service  of  the  late  Confederate 
States,  pleaded  that  it  was  done  by  command  of  officers 
in  the  Confederate  Army,  it  was  held  that  in  order  to  amount 

'  Boynton  v.  Willard,  10  Pick.  166.        =  2  N.  Hamp.  390. 

'  Hathaway  v.  Goodrich,  5  Vt.  65.  "  Cunningham  v.  Pitzcr,  2  W.  Va.  264. 


§  614.  EVIDENCE    IN    JUSTIFICATION.  G31 

to  a  justification,  tlie  orders,  and  the  circumstances  by  wliich 
the  defendants  were  surrounded,  must  be  shown  to  have 
amounted  to  compulsion.^  * 

§  614,  Care  must  be  taken  that  the  evidence  in  justifica- 
tion conforms  to  the  plea.  In  trespass  for  taking  goods,  the 
defendants  pleaded  that  W.  L.  was  possessed  of  a  room,  and 
that  they,  as  his  servants,  removed  the  goods  which  were  in- 
cumbering the  room  to  a  convenient  distance.  It  was  held 
that  this  plea  was  disproved,  by  showing  that  the  defend- 
ants locked  up  the  goods  in  a  room  and  took  away  the 
key.^f  But  a  substantial  correspondence  between  the  alle- 
gations of  the  plea  and  the  evidence  will  be  sufficient.  A. 
being  indebted  to  B.,  it  was  agreed  that  B.  should  keep  A.'s 
cow  until  the  debt  was  paid;  that  A.  might  di-ive  her  away 
every  morning  and  night  to  be  milked,  and  if  he  did  not  re- 
turn her  that  B.  might  retake  her  whenever  or  wherever  he 
found  her.  A.  drove  her  away,  and  kept  her  three  weeks, 
whereupon  B.  retook  her.  In  trespass  by  A.  against  B.,  for 
so  doing,  it  was  held  that  these  facts  supported  a  plea  deny- 


'  Witherspoon  v.  Woody,  4  Cold.  Tenn.  605. 

'  Jones  V.  Lewis,  7  Car.  &  P.  343. 

*  The  civil  law  set  aside  a  contract  procured  by  force  or  fear  or  want  of  liberty 
inrefi;ard  to  it.  Digest,  Lib.  4,  Tit.  2,  §1.  It  was  said  however,  that  the  party 
must  be  intimidated  by  the  apprehension  of  some  serious  evil  of  a  present  or 
pressing  nature,  and  such  as  is  capable  of  making  an  impression  upon  a  person 
of  courage.  But  Pothier  thinks  this  rule  too  strict,  and  that  "  regard  should  be 
had  to  the  age,  sex,  and  condition  of  the  parties,"  and  that  "a  fear  which 
would  not  be  deemed  sufficient  to  have  influenced  a  man  in  the  prime  of  life 
and  of  a  military  character,  might  be  sufficient  in  respect  to  a  woman  or  a  man 
in  the  decline  of  life  "  (Pothier  on  Obligations,  by  Evans,  p.  16,  art.  3,  §§  2,  25). 

Courts  of  equity,  which  derive  their  principles  in  a  lai'ge  degree  from  the 
civil  law,  relieve  a  party  when  he  does  an  act  or  makes  a  contract,  when  he  is 
under  the  influence  of  extreme  terror,  or  of  apprehension  short  of  duress;  for 
in  cases  of  this  sort  he  has  no  free  will,  but  stands  in  vincuUs.  Circumstances 
of  extreme  necessity  or  distress  of  a  party,  although  not  accompanied  by  any 
direct  duress  or  restraint,  may  also  overcome  free  agency,  and  justify  the  court 
in  setting  aside  the  contract  on  account  of  some  attending  oppression,  fraudulent 
advantage  or  imposition  (2  Storv's  Eq.  §239;  and  see  Whelan  v.  Wlielan,  3 
Cowen,  537;  Sears  v.  Shafer,  1  Barb.  408;  s.  c.  2  Seld.  268;  Howell  v.  Kansom, 
11  Paige,  538;  Ellis  v.  Messervie,  lb.  467). 

t  Upon  a  new  assignment  of  excessive  damage  to  a  justification,  the  evidence 
on  the  i)art  of  the  plaintitV  must  establish  a  clear  excess  and  unnecessary  injury 
(Hockless  V.  Mitchell,  4  Esp.  86). 


C32  REMEDY   FOR  WRONGFUL  TAKING   OF   PROPERTY.     §  616. 

ing  A.'s  property  in  the  cow.^  So,  likewise,  the  defendant 
may  sliow  under  the  general  issue  that  the  goods  were  taken 
as  a  distress  for  rent.^  * 

§  615.  Although  the  plea  justifies  the  taking  of  all  of 
the  goods  specified  in  the  declaration,  yet  the  defendant  is 
not  required  to  disprove  the  taking  of  such  as  are  omitted 
from  the  evidence  by  the  plaintiff.  In  an  action  for  entering 
a  store  and  carrying  away  the  plaintiff's  goods,  the  defend- 
ant pleaded  that  the  goods  belonged  to  other  persons,  and 
that  he  levied  on  them  under  executions  against  such  per- 
sons. At  the  trial,  the  plea  was  supported,  except  as  to 
some  of  the  articles  sj^ecified  in  the  declaration,  as  to  which 
there  was  no  proof  of  the  value,  ownership,  or  taking.  It 
was  held  that  the  defendant  was  entitled  to  a  verdict,  and 
that  it  was  not  error  in  the  court  to  refuse  to  charge  the  jury 
that,  as  to,  the  value  of  the  excepted  articles,  they  must  find 
for  the  plaintiff.^ 

14.  Evidence  in  mitigation  of  damages. 

§  616.  The  defendant  may  show  in  mitigation  of  dam- 
ages, that  the  property  did  not  belong  to  the  plaintiff,  and 
that  it  has  been  apj)lied  for  the  benefit  of  the  owner ;  ^  f  or 

1  Richards  v.  Symons,  15  L.  J.  N.  S.  35;  10  Jur.  6. 

"  Reed  v.  Stoiiey,  2  Rich.  401. 

'  Emanuel  v.  Cocke,  6  Dana,  212;  Lovier  v.  Gilpin,  lb.  331. 

*  Squire  v.  Hollenbeck,  9  Pick.  551;  Pierce  v.  Benjamin,  14  lb.  356. 

*  In  an  action  of  trespass,  for  taking  goods  in  execution  under  a  judgment 
which  has  been  set  aside  for  irregularity,  evidence  is  not  admissible  under  the 
plea  of  not  guilty  to  show  that  since  the  commencement  of  the  action  the  pro- 
ceeds of  the  execution  have  been  paid  over  to  the  plaintiff  (Rundle  v.  Little,  13 
L.  J.  N.  S.  311;  8  Jur.  668;  6  Q.  B.  174). 

t  Squire  v.  Hollenbeck,  supra,  was  an  action  of  trespass  for  taking  the 
plaintiff's  horse.  The  defendant  offered  to  prove  on  the  trial  that  the  horse  be- 
longed to  one  Crippen,  and  was  taken  from  the  plaintiff  and  sold  under  an  at- 
tachment issued  in  favor  of  a  creditor  of  Crippen,  and  the  jjroceeds  applied  to 
the  payment  of  Crippen's  debt.  The  Supreme  Court,  in  granting  a  new  trial  on 
account  of  the  rejection  of  this  evidence,  said:  '-It  is  clear  that  it  is  not  com- 
petent to  a  defendant  in  trespass  for  the  taking  of  goods,  to  plead  property  in  a 
stranger,  and  upon  sound  principle,  for  the  trespass  may  be  an  injury  to  the  pos- 
session. The  question  to  be  considered  is,  whether  if  the  property  comes  to  the 
use  of  the  owner,  evidence  of  that  fact  may  not  be  received  in  mitigation  of 
damages;  and  we  all  think  it  may  be.  The  reason  why  a  party  having  posses- 
sion should  maintain  trespass  is,  that  he  may  have  sustained  injury  by  being 


4 


§  617.  EVIDENCE   IN  MITIGATION   OF  DAMAGES.  633 

in  case  of  improper  seizure  of  goods  on  execution,  that  with- 
out any  agency  on  the  part  of  the  officer,  the  goods  in  ques- 
tion have  been  applied  to  the  payment  of  the  plaintiff's  debt 
due  to  a  third  person;^*  or  that  the  goods  have  been  re- 
taken by  the  owner.^  Where  ia  an  action  l)y  one  of  two 
partners  to  recover  his  interest  in  property  taken  wrongfully 
on  an  execution  against  the  firm,  the  other  partner  refusing 
to  be  made  a  plaintiff,  was  joined  as  a  defendant,  it  was  held 
that  a  retaking  of  the  goods,  either  before  or  after  the  com- 
mencement of  the  action  by  the  defendant  partner,  was  in 
legal  effect  a  retaking  on  the  joint  account  of  himself  and  the 
plaintiff,  and  to  that  extent  would  reduce  the  damages.^ 

§  617.  Where  goods  are  tortiously  taken,  and  before  suit 
brought  there  is  a  sale  on  legal  process  against  the  owner  in 
favor  of  some  person  other  than  the  wrong-doer,  such  second 
taking  will  be  received  in  mitigation  of  damages  in  an  action 
Ijy  the  owner  against  the  tort  feasor,  if  the  latter  took  the  goods 
believing  that  he  had  a  title  to  them.*  In  Kaley  v.  Shed,^  which 

deprived  of  the  goods ;  nor  Should  bis  claim  to  damages  be  construed  strictly. 
Ordinarily  he  is  either  the  owner  or  answerable  over  to  the  owner;  and  in  either 
case  he  is  entitled  not  only  to  damages  for  the  taking,  but  also  for  the  value  of 
the  goods.  Possession  is  ^>?'ma /acie  evidence  of  title,  and  unless  the  contrary 
is  shown,  it  is  suflBcient  to  entitle  the  plaintiff  to  recover  for  the  value.  But 
here,  if  the  allegation  of  the  defendant  can  be  made  out  by  proof,  the  plaintiff  is 
not  answerable  over.  The  real  damage  then  sustained  by  him  arises  from  the 
injury  to  his  special  property,  and  he  ought  not  to  recover  for  the  value  of  the 
mare.  The  evidence  which  was  rejected  ought  to  be  received,  and  the  burden 
Avill  rest  on  the  defendant  to  prove  satisfactorily  the  fact  alleged,  in  order  to 
justify  a  reduction  of  the  damages." 

Where  in  an  action  of  trespass  against  a  justice  of  the  peace  for  attaching 
personal  property  without  the  jiroof  required  by  law,  the  property  is  restored  to 
the  owner  before  the  commencement  of  the  suit.  Such  restoration,  although  it 
cannot  be  pleaded  in  bar,  must  be  received  in  mitigation  of  damages;  otherwise 
the  plaintiff  would  recover  for  an  injury  which  he  had  not  sustained  (Vosburgh 
v.  Welch,  11  Johns.  175;  see  4  Denio,  i20). 

'  Sherry  v.  Schuyler,  2  Hill,  204 ;  Wehle  v.  Haviland,  42  How.  Pr.  R.  399. 

'  Wehle  agst.  Butler,  43  How.  Pr.  R.  5. 

»  Nightingale  v.  Scannell,  18  Cai.  315. 

*  Higgins  V.  Whitney,  24  Wend.  379;  Otis  v.  Jones,  21  lb.  394. 
"  10  Mete.  317. 

*  Irish  V.  Cloyes,  8  Vt.  30,  -was  an  action  of  trover,  and  the  evidence  of  a 
conversion  consisted  in  a  demand  and  refusal.  Subsequently  to  the  demand, 
the  chattels  were  seized  by  a  third  person,  a  collector  of  taxes,  and  were  regu- 
larly disposed  of,  to  satisfy  a  tax.  The  plaintiff  having  thus  received  the  benefit 
of  the  property,  in  satisfaction  of  his  own  debt,  the  court  held  him  entitled  to 
nominal  damages  only. 


G34         REMEDY    FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  617, 

was  an  action  of  trespass  against  a  constable,  it  appeared  that 
the  goods  were  taken  from  the  plaintiff's  house  by  the  defend- 
ant, ^vhilst  in  the  execution  of  a  search  warrant ;  but  not 
being  the  goods  specified  in  the  warrant,  the  taking  was  a 
trespass.  The  plaintiff  had  demanded  tlje  goods,  and  whilst 
the  defendant  was  preparing  to  return  them,  they  were  at- 
tached as  the  property  of  the  plaintiff  by  another  officer.  It  was 
held  that  the  property  being  in  the  custody  of  the  law  by  legal 
process,  which  the  defendant  could  not  resist  or  control,  and 
going  to  the  plaintiff's  benefit  as  much  as  if  it  had  been  re- 
turned, such  application  operated  to  the  same  extent  in  mitiga- 
tion of  damages.  In  New  Jersey,  it  has  been  held  that  when  it 
appears  that  the  goods  have  been  attached  or  taken  in  exe- 
cution in  the  hands  of  the  wrong-doer,  upon  process  issued 
against  the  owner,  and  that  they  have  been  applied  in  satis- 
faction of  the  owner's  debt,  or  otberwise  for  his  benefit,  this 
may  be  shown  in  mitigation  of  damages,  whether  the  process 
be  sued  out  by  the  trespasser  or  by  a  third  party.^  In  Mas- 
sachusetts, an  action  of  trespass  was  brought  against  a  sheriff 
for  taking  and  carrying  away  dry  goods,  by  virtue  of  an 
attachment  in  favor  of  the  creditor  of  the  owner  of  the 
goods.  The  latter  had  mortgaged  the  goods  to  the  plaintiff, 
the  plaintiff  taking  them  into  his  possession.  A  question 
arose  whether  the  defendant  could  show,  in  mitigation  of 
damages,  that  the  property  thus  Avrongfully  taken  by  him 
from  the  possession  of  the  plaintiff  was  liable  to  be  seques- 
tered for  the  debts  of  the  mortgagor,  upon  the  ground  of  its 
having  been  transferred  to  the  plaintifi"  in  violation  of  the 
provisions  of  the  bankrupt  law,  and  had  in  fact  been  thus 
sequestered,  and  that  he  had,  as  assignee,  under  the  decree 
of  the  District  Court  to  that  effect,  accounted  for  the  avails 
thereof  as  a  part  of  the  assets  of  the  bankrupt,  to  be  distrib- 
uted among  his  creditors.  The  plaintiff  insisted  that  ifthe 
defendant  was  a  wrong-doer  in  the  original  taking  of  the 
property,  he  must  be  charged  with  the  whole  value  of  it  ; 

'  Hoijple  V.  Higbee,  3  Zab.  342;  but  see  McMicliael  v.  Masou,  13  Penu.  St. 
R.  214. 


I  618.      OBJECTIONS  TO   EVIDENCE,  WHEN  TO   BE   MADE.  035 

and  this  irrespective  of  the  proceedings  in  bankruptcy,  and 
of  the  fact  that  he  had  been  required  to  account  therefor  as 
assignee.  It  was,  however,  held  that  the  plaintiff  could  only 
recovei'  nominal  damages.^  * 

15.   Objections  to  evidence^   when  to  he  made. 

§  018.  Objections  to  the  admissibility  of  evidence  must  be 
made  at  the  trial.  In  an  action  for  wrongfully  taking  trees 
and  converting  them  into  shingles,  the  defendants  allowed 
the  plaintiff  to  give  all  his  evidence  in  regard  to  the  value 
of  the  shingles,  and  raised  no  objection  at  the  trial  that  the 
plaintiff  was  not  entitled  to  recover  full  damages  because  of 
any  omission  or  defect  in  the  complaint.  It  was  held  that 
the  objection  taken  on  appeal,  that  the  complaint  was  not 
for  the  shinofles  but  for  the  timber  in  its  orio;inal  state,  came 
too  late.^  Where,  in  an  action  of  trespass  for  taking  a 
quantity  of  hay,  the  defendant  claimed  under  a  chattel  mort- 
gage which  had  been  filed  in  the  town  clerk's  office,  but  it 
was  not  proved  where  the  mortgagor  resided  when  the  mort- 
gage was  executed,  it  was  held  that  the  plaintiff  was  entitled 
to  recover,  the  mortgage  being  void  for  want  of  j^roof  that 
it  was  filed  in  the  proper  clerk's  office.  This  decision,  how- 
ever, was  afterward  overruled  by  the  New  York  Court  of 
Appeals,  on  the  ground  that  it  did  not  appear  that  the  fore- 
going objection  was  made  on  the  trial.^ 

'  Perry  v.  Chandler,  2  Cush.  337. 

*  Rice  V.  HoUenbeck,  19  Barb.  664.  =  Smith  v.  Jenks,  1  Denio,  580. 

*  In  this  case  the  court  said :  "  It  is  no  doubt  true  tliat  possession  of  personal 
property  is  sufticient  to  entitle  a  party  to  maintain  trespass  against  the  wrong- 
doer, and  to  recover  tlie  whole  value  of  the  property;  and  that  it  would  consti- 
tute no  legal  defense,  either  to  the  action  or  to  the  damages,  to  show  merely  ah 
outstanding  title  in  a  third  person,  or  that  the  plaintiff  had  a  special  property  in 
the  articles  whilst  the  general  property  was  in  another.  Some  of  the  cases  cited 
by  the  counsel  for  tiie  plaintiff  seem  to  go  much  further,  and  to  hold  that  in  a 
case  where  the  original  taking  was  unlawful,  the  plaintiff  would  be  entitled  to 
recover  the  full  value  of  the  pro|)erty  taken,  and  that  evidence  of  the  appropria- 
tion of  the  proceeds  of  the  property  to  tlie  use  of  the  ])laintiff,  or  a  surrender  of 
it,  or  of  its  proceeds,  to  other  persons  having  a  legal  title  thereto,  would  not  be 
competent  in  mitigation  of  damages.  We  think  a  different  rule  has  been  adopted 
in  Massachusetts"  (citing  Ilanmer  v.  Wilsey,  17  Wend.  91 ;  Pierce  v.  Benja- 
min, 14  Pick.  356;  Kaley  v.  Shed,  10  Mete.  317;  Scpiire  v.  HoUenbeck,  9  Pick. 
551). 


636         REMEDY  FOR   WRONGFUL   TAKIKG  OF   PROPERTY.     §  619. 

16.  Damages  in  general. 

§  611).  The  jury  may  take  into  consideration  the  circum- 
stances Avbich  accompanied  and  gave  character  to  the  wrong, 
and  give  damages  for  whatever  injury  the  evidence  'shows 
necessarily  resulted  from  the  wrongful  act ;  ^  *  and  the  plaint- 
iff cannot  be  deprived  of  them  by  any  mere  act  of  the  wrong- 
doer— as  by  an  unaccepted  offer  to  return  tlie  property,  or 
causing  it  to  be  subsequently  taken  on  legal  process  against 
the  owner.^  In  an  action  of  trespass  against  two  creditors 
and  an  officer  for  attaching  the  property  of  tbe  debtor,  it  ap- 
peared that  the  officer  delivered  the  property  attached  to  a 
receiptor,  and  that  the  plaintiff',  after  commencing  bis  action 
of  trespass,  assigned  liis  claim  therein  to  the  receiptor ;  and 
that  judgment  having  afterward  been  rendered  and  execution 
issued  in  the  suit  in  which  the  property  was  attached,  the  of- 
ficer demanded  the  j^roperty  of  the  receiptor  who  refused  to 
redeliver  the  same.  It  was  held  that  such  refusal  on  the  part 
of  the  receiptor  could  not  go  in  mitigation  of  damages,  the 
defendants  not  having  offered  to  surrender  to  him  his  receipt 
or  discharge  him  from  his  liability  thereon.^  Where  it  was 
proved  that  the  plaintiff'  having  purchased  goods  of  the  de- 
fendant on  credit,  secretly  absconded  with  them,  and  that  the 
defendant  followed  him  and  forcibly  retook  the  goods,  it  was 
held  that  the  measure  of  damages  was  the  value  of  the 
goods,  and  that  the  defendant  could  not  consider  the  debt  due 
from  the  plaintiff  to  him,  or  treat  it  as  reduced  by  the  tak- 
ing.^ f 

'  Young  V.  Mertens,  27  Md.  114;  Baltimore  &c.  R.  E.  Co.  v.  Blocher,  lb. 
277;  ante,  §.598. 

-  Higgins  V.  Whitney,  24  Wend.  379;  Hanmer  v.  Wilsey,  17  lb.  91;  Otis  v. 
Jones,  21  lb.  394;  Rogers  v.  Fales,  5  Penn.  St.  R.  154;  Wooley  v.  Carter,  2 
Halst.  85 ;  Johnson  v.  Parker,  1  N.  «&  M.  1 ;  Denison  v.  Hyde,  6  Conn.  507 ; 
Burrows  v.  Stoddard,  3  lb.  431 ;  see  ante,  §  617,  post,  §  622. 

'  Ellis  V.  Howard,  17  Vt.  330. 

'  Gillard  v.  Brittan,  1  Dowl.  N.  S.  424;  8  Mees.  &  W.  575;  and  see  Knight 
V.  Herrin,  48  Maine,  533. 

*  Where,  in  an  action  of  trespass  de  tonis  asportatis,  the  defendant  suffers  a 
default,  the  plaintiff  is  entitled  to  nominal  damages  only,  unless  he  establishes  a 
claim  to  a  larger  sum  (Rose  v.  Gallup,  33  Conn.  338). 

t  In  an  action  of  trespass  against  an  officer  for    levying  on  and  selling  the 


§  620.  DAMAGES  IN   GENERAL.  637 

§  620.  Where  the  action  is  for  the  fraudulent,  malicious, 
or  wilful  taking  of  goods,  the  amount  of  damages  is  in  the 
discretion  of  the  jury.^  *  But,  ordinarily,  for  the  mere  taking 
of  goods,  a  verdict  for  the  plaintiff  should  be  for  the  value  of 
the  property  taken  at  the  time  of  the  taking,  with  interest.* 
Goods  having  been  sold,  were  seized  by  the  sheriff,  in  transit, 
under  an  attachment  against  the  seller,  and  judgment  by  de- 
fault entered  thereon.  An  action  was  brought  by  the  owner 
of  the  goods  against  the  sheriff  for  the  seizure ;  and  subse- 
quently, as  the  property  was  peri8hable,\  the  parties  agreed 


plaintiff's  goods,  in  disregard  of  his  claim  for  the  benefit  of  the  exemption  law^ 
the  debt  cannot  be  defalked  against  the  plaintiff's  damages  (Wilson  v.  McElroy, 
32  Penn.  St.  R.  82). 

In  an  action  of  trespass  for  attaching  and  selling  trust  property  upon  a  writ 
against  the  trustee  personally,  the  judgment  in  the  attachment  suit  cannot  be  de- 
ducted from  the  value  of  the  property  sued  for,  on  the  ground  that  the  demand 
for  which  judgment  was  recovered,  was  for  property  bought  by  the  trustee  for 
the  benefit  of  the  trust,  and  appropriated  to  the  use  of  the  cestui  que  trusty  un- 
less there  was  mistake  or  fraud  in  obtaining  it  on  the  personal  credit  of  the 
trustee.  Barber  v.  Chapin,  28  Vt.  413,  was  an  action  of  trespass  against  a 
deputy  sheriff  for  attaching  and  selling  certain  personal  property  held  in  trust  by 
the  plaintiflf,  on  a  writ  in  favor  of  Townsley  &  Son,  against  the  plaintifi".  At  the 
trial,  in  the  court  below,  the  defendant  offered  to  prove,  under  the  general  issue, 
that  the  property  attached  by  Townsley  &  Son,  and  for  which  they  recovered 
judgment  against  the  present  plaintiff,  was  property  bought  for  the  benefit  of 
the  trust  fund,  and  applied  to  the  use  and  benefit  of  the  cestui  que  trust;  and  he 
claimed  the  right  to  have  the  said  judgment  deducted,  by  way  of  recoupment, 
from  the  value  of  the  property  sued  for  in  the  present  action.  But  it  was  held 
that  the  evidence  was  not  admissible,  and  judgment  was  rendered  in  favor  of 
fhe  plaintiflf  for  the  full  value  of  the  property.  The  Supreme  Court,  in  afiirm- 
ing  the  judgment,  said:  "Had  the  plaintifi",  by  representing  himself  as  the 
owner,  or  perhaps  by  having  the  possession  and  ostensible  ownership  of  the 
property  held  in  trust,  gained  a  false  credit  with  Townsley  &  Son;  and,  espe- 
cially^ had  he  done  this  purposely,  and  the  property,  obtained  through  this  false 
credit,  had  gone  to  the  use  of  the  cestui  que  trust,  it  is  very  probaijlethat  a  court 
of  equity  would  have  afforded  some  relief.  But  nothing  of  that  kind  was  of- 
fered to  be  shown  in  the  present  case.  Here,  for  anything  apparent,  the  fact  of 
the  property  being  trust  jiroperty  was  well  known  to  Townsley  &  Sou  at  the 
time  the  credit  was  given.  And  if  it  had  not  been  known,  it  might  not  have 
been  the  fault  of  the  cestui  que  trust,  or  even  of  the  trustee.  The  credit  then 
being  given  to  the  trustee  personally,  without  fraud  or  mistake,  we  are  unable 
to  perceive  any  ground  for  deducting  the  amount  of  the  credit  from  the  judg- 
ment." 

'  Bi-iscoe  v.  ]\IcElween,  43  Miss.  556 ;  Jamison  v.  Moon,  lb.  598. 

-  Hopple  V.  Higbee,  3  Zab.  342;  Walker  v.  Borland,  21  Mo.  289;  Coolidge 
V.  Choate,  11  Mete.  79;  Feltcm  v.  Fuller,  35  N.  Hamp.  226;  Engle  v.  Jones,  51 
Mo.  310.     And  see  Franz  v.  Hilterbrand,  45  lb.  121. 

*  In  trespass  to  peisonal  property  under  a  pretended  claim  of  right,  and  with 
a  view  to  pecuniary  gain  only,  tlie  rule  of  damages  is  one  of  compensation  merely, 
and  not  punitive;  no  matter  iiow  unfounded  the  claim  may  be,  provided  tlie  act 
be  not  such  as  to  imply  malice  (Lane  v.  Wilcox,  55  Barb.  615,  per  Foster,  J.) 


638  REMEDY    FOR   WRONGFUL  TAKING  OF   PROPERTY.     §  621. 

that  an  execution  should  issue  upon  the  judgment  in  the  at- 
tachment suit,  and  that  the  goods  should  be  sold  and  the 
proceeds  be  paid  into  court  to  abide  the  result  of  the  contro- 
versy. It  was  held  that  the  owner  of  the  goods  was  entitled 
to  recover  their  full  value,  although  he  purchased  them  at 
such  sale  for  less  than  they  were  worth.^  In  an  action  against 
the  collector  of  customs  for  improperly  seizing  and  detaining 
the  plaintiff's  ship,  it  was  held  that  the  measure  of  damages 
was  the  difference  between  the  price  for  which  the  vessel 
would  have  sold  at  the  time  of  her  seizure,  and  the  price 
she  actually  sold  for  at  public  auction  directly  after  her  res- 
toration, together  with  the  actual  expenses  incurred  and  the 
interest  on  the  amount.^*  "Where  an  action  was  brous-ht 
against  an  officer  for  levying  upon  the  plaintiff's  horse,  under 
an  execution  against  a  third  person,  it  was  held  that  the 
measure  of  damages  was  the  value  of  the  horse  to  the  plaintiff 
in  his  business.^ 

§  621.  It  is  obvious  that  the  value  of  goods  taken  would 


^  Ely  V.  Schumacher,  29  Penn.  St.  R.  40. 

^  Woodham  v.  Gelston,  1  .Johus.  134.  '  Farrel  v.  Colwell,  1  Vroom,  123. 

*  In  Woodham  v.  Gelston,  supra,  the  court  said:  "  We  are  not  now  to  settle 
a  rule  of  damage  which  will  be  applical^le  in  every  action  of  trespass,  but  merely 
whether  the  one  contended  for  by  the  plaintiff  be  proper  under  all  the  circum- 
stances of  this  case.  We  think  it  is.  It  is  seldom  that  the  actual  injury  sustained 
in  consequence  of  a  tort  can  be  ascertained  with  so  much  precision.  Since  it  can 
be  so  estimated,  and  the  party  is  willing  to  adhere  to  this  measure  of  damage, 
there  can  be  no  reason  to  prevent  his  recovery  to  that  extent.  The  data  on  which 
this  esiimate  is  formed  are  satisfactory,  and  leave  less  to  an  arbitrary  discretion 
than  any  which  have  been  proposed  as  substitutes.  The  difference  between 
the  price  in  the  first  and  second  sale,  both  being  fair,  though  some  credit  was 
given  in  the  first,  and  the  actual  expenses  he  has  incurred,  will,  with  the  interest, 
amount  to  no  more  than  an  indemnity  to  the  plaintiff  for  the  injury  resulting  from 
the  conduct  of  the  defendant.  To  such  an  indemnity  the  defendant,  who  is  ad- 
mitted to  be  a  trespasser,  cannot  reasonably  object.  The  marshal's  fees  must  now 
be  presumed  to  have  been  properly  paid ;  and  if  the  defendant  were  liable  for 
them,  as  was  probably  the  case,  since  the  property  was  restored,  there  can  be  no 
hardship  in  refunding  them  to  the  plaintiff.  At  any  rate,  it  might  have  been 
shown  to  the  jury,  or  stated  in  the  case,  that  this  was  a  mere  voluntary  payment, 
and  then  a  deduction  would  have  been  2:)roper.  The  interest  has  been  objected 
to,  because  the  jury  were  not  obliged  to  allow  it.  If  they  had  a  discretion  on  this 
subject,  it  is  sufficient.  Two  trifling  charges  for  wharfage  and  ship  keeping  must 
be  deducted,  as  they  accrued  after  the  restoration  of  the  vessel.  As  the  calcula- 
tion now  stands,  the  verdict  includes  a  small  sum  as  compound  interest.  We  are 
of  opinion  that  this  must  be  deducted,  without,  however,  intending  to  say  that 
compound  interest  can  never  in  any  case  be  recovered." 


§  621.  DAMAGES   IN    GENERAL.  639 

not  always  furnish  a  correct  standard  of  recompense.*  A 
party,  for  instance,  has  upon  his  grounds  a  quantity  of  stand- 
ing timber,  which  he  wishes  to  preserve  in  the  expectation 
that  it  may  appreciate  in  value.  It  would  hardly  accord 
with  the  claims  of  justice  to  oblige  him  to  accept  from  a 
trespasser,  in  an  action  brought  to  vindicate  his  rights,  the 
price  of  the  timber  at  such  time  as  the  trespasser  might 
choose  to  take  it.^  Neither  does  the  law  recognize  the  inter- 
est as  uniformly  the  exact  measure  of  damages;^  but  the 
owner  of  the  goods  may  prove  the  value  of  the  use  during 
the  time  he  was  deprived  of  them.'*  And  there  is  an  excep- 
tion to  the  rule  when  the  property  has  been  restored  to  the 
owner.*  When  goods  sold  under  illegal  process  are  bid  in 
for  the  owner  by  his  agent,  the  measure  of  damages  in  an  ac- 
tion of  trespass  is  the  amount  of  the  bid  and  interest,  and  not 
the  value  of  property  sold.^  In  case  of  a  wrongful  levy  and 
sale,  the  measure  of  damages  is  the  value  of  the  property  at 
the  sale  only  where  the  purchaser  has  obtained  the  property ; 
otherwise,  the  loss  actually  sustained  is  the  measure.*'  Where 
goods  wrongfully  attached  are  left  by  the  officer  with  the 
owner,  upon  his  giving  a  receipt  for  them,  the  latter,  in  an 
action  brought  by  him  against  the  officer,  will  be  entitled  to 
recover  the  value  of  the  goods  at  the  time  of  the  attachment, 
but  without  interest  for  the  time  during  which  the  owner  has 
the  use  of  them  under  the  receipt.'^     So,  likewise,  if  an  officer 

^  Bucknam  v.  Nash,  12  Maine,  474. 

"  Longfellow  v.  Quimby,  29  Maine,  196 ;  s.  c.  33  lb.  457. 

'  Warfield  v.  Walter,  11  Gill  &  Johns.  80. 

*  Hunt  V.  Haskell,  24  Maine,  339;  Curtis  v.  Ward,  20  Conn.  204;  Barry  v.- 
Bennett,  7  Mete.  354;  Johnson  v.  Sumner,  1  lb.  172;  Weld  v.  Oliver,  21  Pick. 
559;  Kennedy  v.  Whitwell,  4  lb.  460;  Greenfield  Bank  v.  Leavitt,  17  lb.  1;  Fel- 
ton  V.  Fuller,  35  N.  Hamp.  226. 

*  Baker  v.  Freeman,  9  Wend.  36.  "  Warner  v.  Ostrander,  44  111.  356. 
'  Eobinson  v.  Mansfield,  13  Pick.  139. 

*  In  an  action  by  a  married  woman  for  the  wrongful  taking  and  removal  of 
her  personal  property,  under  an  execution  against  her  husband,  it  -was  held  that 
the  measure  of  damages  was  not  the  value  of  the  goods  seized,  but  only  such 
damnges,  if  any,  as  she  liad  sustained  by  reason  of  the  taking  and  detention  of 
the  goods,  and  the  injurious  consequences  thereof,  if  any,  from  the  date  of  the 
seizure  until  their  restitution,  unless  the  defendants  acted  after  notice  and  wan- 
tonly, in  which  case  she  would  be  entitled  to  exemplary  damages  (Strasburger  v. 
Barber,  38  Md.  103). 


640  REMEDY   FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  622. 

use  goods  which  he  has  attached,  the  owner  will  be  entitled  to 
recover  their  value,  unless  he  subsequently  received  back  the 
property,  or  the  same  was  legally  disposed  of  for  his  benefit, 
in  which  case  the  officer  will  only  be  liable  for  the  damages 
occasioned  by  the  use.^  *  Where,  in  an  action  for  taking  and 
carrying  away  goods,  it  appeared  that  the  plaintiff,  subse- 
quent to  the  asportation,  received  railroad  checks  for  the 
goods,  which  he  handed  to  a  third  person,  with  instructions 
to  take  charge  of  the  property,  it  w^as  held  a  sufficient  exer- 
cise of  ownership  over  the  goods  by  the  plaintiff  to  be  con- 
sidered in  mitigation  of  damages.^ 

§  622.  Where  an  action  is  brought  by  the  mortgagee  of 
personal  property  against  an  officer  for  taking  part  of  it,  un- 
der an  attachment  against  the  mortgagor,  the  defendant  may 
show  that  the  plaintiff  has  been  paid  his  claim  out  of  the 


'  Collins  V.  Perkins,   31  Vt.   624 ;  Yale  v.   Saunders,  16  lb.  243 ;  Stewart  v. 
Martin,  lb.  397;  Lamb  v.  Day,  8  lb.  407. 

'  Dailey  v.  Crowley,  5  Lans.  301. 

*  In  an  action  of  trespass  for  taking  a  quantity  of  wood,  it  appeared  that  the 
land  whereon  the  wood  was  cut  was  claimed  adversely  to  the  plaintiff;  that  the 
adverse  claimant  sold  the  wood  in  question  to  one  Mann,  who  caused  it  to  be 
cut,  and  after  it  was  cut  employed  the  defendant  to  remove  it  to  another  part  of 
the  same  lot.  It  was  held  that,  if  the  plaintiif  could  maintain  the  action,  he  was 
entitled  to  only  such  actual  damages  as  were  caused  by  the  removal  (Pratt  v.  Bat- 
tels, 28  Vt.  685).  The  court  said  :  "  We  are  satisfied  that  the  defendant  is  not  lia- 
ble in  this  case  lor  the  value  of  the  wood  as  it  stood  upon  the  land.  It  is  not  pre- 
tended that  the  defendant  has  used  the  wood  or  in  any  way  converted  it  to  his 
own  use,  or  done  any  act  in  relation  to  it.  but  simply  remove  it  from  one  place  to 
another  on  the  same  premises.  It  was  never  removed  from  the  farm  on  which  it 
was  cut,  and,  in  fact,  the  wood  was  left  by  the  defendant  in  the  actual  and  con- 
structive possession  of  the  same  person  in  whom  it  was  before  the  removal  was 
made.  The  plaintiff  had  the  same  constructive  possession  after  the  removal  by 
the  defendant  that  she  had  before;  for  it  was  left  on  the  same  premises  to  which 
she  made  her  claim  of  title.  The  defendant,  for  that  act,  cannot  be  made  liable 
for  the  value  of  the  wood  as  it  stood  on  the  stump.  The  plaintiff  can  recover  but 
nominal  damages,  or.  at  most,  the  actual  damages  sustained  from  the  mere  act  of 
removal.  If  the  defendant  had  removed  the  w'ood  from  the  premises,  and  had 
taken  the  same  into  his  exclusive  possession,  and  an  action  of  trespass  or  trover 
had  been  commenced  against  him,  yet,  if  before  judgment  the  property  had  been 
returned  and  placed  upon  the  premises  from  which  he  had  taken  it,  the  rule  of 
damages  would  be  the  same;  the  plaintiff  could  recover  but  nominal  damages, 
or,  at  most,  actual  damages  for  the  removal.  The  return  of  the  property  would 
mitigate  the  damages  to  that  amount.  The  rule  of  damages  in  this  case  can  be 
no  greater  than  in  that,  for  the  injury  sustained  is  no  greater.  The  fact  that 
this  wood  was  left  in  the  same  lot  in  which  it  was  taken,  and  consequently  as 
much  in  the  possession  of  the  plaintiff  as  it  was  before  its  removal,  should  have 
the  effect  to  reduce  the  plaintiff's  claim  to  nominal  damages,  or  such  actual  dam- 
ages as  were  sustained  from  the  act  of  removing  it." 


§  623.  DAMAGES   Il!f  GENEEAL.  641 

the  property  left  in  Ms  possession.^  And  if  goods  wrong- 
fully taken  have  afterward  been  legally  sold  on  an  execution 
against  the  claimant,  such  sale  wdli  take  from  the  considera- 
tion of  the  jury  all  inquiry  as  to  the  value  of  the  property, 
and  confine  them  to  such  damages  only  as  were  actually  sus- 
tained by  the  wrongful  taking.^  So,  also,  where  an  action  of 
trespass  is  brought  against  an  officer  for  attaching  property 
out  of  his  j)i"ecinct,  he  may  show,  in  reduction  of  damages, 
that  having  carried  the  property  within  his  precinct,  he  at- 
tached it  there,  on  the  same  process,  after  the  commencement 
of  the  action  of  trespass  against  him.^  * 

§  623.  If  goods  deposited  with  a  pawnbroker,  as  security 
for  advances,  are  distrained,  the  measure  of  damages  is  the 
value  of  the  goods,  and  not  the  plaintiff's  interest  in  them.* 
But  where  personal  property  mortgaged  is  left  by  agreement 
with  the  mortgagor,  and  before  forfeitiu'e  is  seized  by  the 
mortgagee,  in  an  action  of  trespass  by  the  mortgagor  there- 
for, the  measure  of  damages  is  not  the  value  of  the  goods, 
but  the  value  of  the  plaintiff's  interest  in  them  at  the  time  of 
the  trespass.^  So,  likewise,  when  the  action  is  brought  by  a 
bailee  against  the  general  owner,  the  plaintiff^  can  recover  the 
value  of  his  special  property  only.     If  the  suit  be  by  the 


'  Ward  V.  Henry,  15  Wis.  239. 

*  Irish  V.  Cloyes,  8  Vt.  30 ;  Clark  v.  Washburn,  9  lb.  303 ;  Squire  v.  Hollen- 
beck,  9  Pick.  551 ;  Pierce  v.  Benjamin,  14  lb.  356. 

'  Stewart  v.  Martin,  16  Vt.  397.         :  "  Swire  v.  Leach,  18  C.  B.  N.  S.  479. 
'  Brierly  v.  Kendall,  17  Adol.  &  El.  K  S.  937. 

*  Stewart  v.  Martin,  supra,  was  an  action  of  trespass  against  a  constable  for 
attaching  cows  and  otlier  property  on  a  writ  against  one  Corey ;  the  plaintiff 
claiming  to  have  previously  bought  the  property  of  Corey.  Williams,  Ch.  J.,  in 
delivering  the  opinion  of  the  court,  said:  "The  actual  damages  which  the 
plaintiff  sustained  were  no  other  than  nominal.  The  damages  for  driving  the 
cattle  across  the  line  between  the  towns  of  Arlington  and  Shaftsbuiy  could  be 
no  other  than  nominal,  when  they  were  at  all  times  liable  to  be  taken  by  the 
creditors  of  Corey,  and  were  so  in  fact  taken  by  Iluling.  claiming  to  be  a  cred- 
itor. The  plaintiff"  may  consider  herself  fortunate  in  trying  this  question  of  the 
validity  of  the  sale  from  Corey  to  her  at  the  cost  of  the  defendant,  who  has  been 
subject  to  nominal  damages  in  consequence  of  his  going  out  of  his  jirecinct  to 
serve  the  writ  of  Iluling. 

In  an  action  of  trespass  f^gainst  a  sheriff  for  seizing  goods  in  transit,  the 
measure  of  damages  is  the  value  of  tlie  goods  at  the  time  at  the  place  of  consign- 
ment, less  the  charges  of  the  carrier  for  delivering  it  there. 

Vol.  I.— 41 


G42         REMEDY  FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  G24. 

bailee  against  a  stranger,  the  plaintiff  is  entitled  to  tlie  value 
of  the  property  and  interest,  according  to  the  general  rule, 
and  holds  the  balance  beyond  his  own  claim,  in  trust  for  the 
general  owner.^  In  a  declaration  in  trespass,  the  plaintiff, 
who  was  an  attorney,  stated  his  damages  specially,  namely, 
that  in  consequence  of  the  taking  away  of  a  promissory  note 
from  his  office  by  the  defendant,  the  plaintiff  w^as  prevented 
from  prosecuting  and  collecting  it,  and  was  deprived  of  the 
profit  of  a  suit  for  the  collection  thereof.  The  judge  charged 
the  jury,  as  a  matter  of  law,  that  the  plaintiff* 's  actual  damages^ 
if  they  found  for  him,  were  the  amount  of  the  note,  principal 
and  interest,  together  with  five  dollars  for  retaining  fee  and 
issuing  the  declaration  on  the  note.  It  was  held,  that  this 
instruction  was  erroneous,  the  law  not  implying  that  the 
plaintiff  had  sustained  any  such  damage.^ 

§  624.  Not  only  the  direct  damage,  but  the  probable  or 
inevitable  damages  which  result  from  the  aggravating  cii'- 
cumstances  attending  the  act,  are  proper  to  be  estimated  by 
the  jury.^ "     In  an  action  of  trespass  for  the  wrongful  seizure 


'  Russell  V.  Butterfield,  21  Wend.  300;  White  v.  Webb,  15  Conn.  302;  Ken- 
nedy V.  Whitwell,  4  Pick.  466 ;  Spoor  v.  Holland,  8  Wend.  445 ;  Brizsee  v. 
Maybee,  21  lb.  144. 

=  Dumont  v.  Smith,  4  Denio,  319.  '  Allred  v.  Bray,  41  Mo.  484. 

*  In  Suydam  v.  Jenkins,  3  Sandf.  614.  the  court  laid  down  the  following^ 
rule  for  ascertaining  the  sum  which  tlie  injured  party  ought  to  recover  where 
personal  property  is  wrongfully  detained,  whether  by  force,  by  fraud,  or  by  pro- 
cess of  law:  "  Setting  aside  the  exceptional  cases,  in  which  exemplary  damages 
may  be  justly  claimed  and  given,  and  confining  ourselves  to  those  in  which  the 
remedy  sought  is  simply  pecuniary,  the  principles  which,  as  it  seems  to  us,  are 
manifestly  just  and  universal  in  their  application,  are,  that  the  owner,  to  whom 
compensation  is  due,  must  be  fully  indemnified,  and  that  the  wrong-doer  must 
not  be  permitted  to  derive  any  benefit  or  advantage  whatever  from  his  wrongful 
act.  It  may  frequently  happen  that  these  i^rinciples,  when  applied,  will  co- 
incide in  the  result;  but  there  are  many  cases  in  which  it  will  be  seen  that  the 
application  of  both  is  necessary.  The  injured  party  must  be  indemnified.  He 
must  be  placed  in  the  same  situation  in  which  he  would  have  beeu  had  the 
wrong  not  been  committed,  or  it  had  been  instantly  repaired  by  the  payment  of 
the  compensation  then  due.  As  the  actual  loss  to  the  owner  is  the  same,  what- 
ever may  be  the  form  of  the  action  in  which  its  reparation  is  sought,  the  sum 
due  to  him  for  its  compensation  must  be  the  same  whether  he  is  the  plaintiff  in 
trespass  or  trover,  or  the  defeudaut  in  replevin.  There  can  be  no  variance  in  the 
amount  of  an  indemnity,  and  if  its  criterion  can  be  fixed,  any  departure  from  the 
standard  which  it  establishes  must  be  capricious  and  arbitrary.  *  *  *  *  It 
will  be  ascertained  in  all  cases  by  adding  to  the  value  of  the  property,  when  the 
owner  is  dispossessed,  the  damages  which  he  is  proved  to  have  sustained  from 


I  624.  DAMAGES   IN  GENERAL.  G43 

and  detention  of  the  j)laintiff's  sloop,  it  was  held,  tLat  the 
jury  were  at  liberty  to  consider  the  expense  which  might 
arise  in  the  recov^ery  of  the  property,  and  damage  for  the 
forcible  invasion  of  it,  as  well  as  for  the  injury  the  vessel  had 
sustained.^  Edwards  v.  Beacli  ^  was  an  action  for  forcibly 
taking,  carrying  away,  and  destroying  the  tavern  sign  of  the 
plaintiff.  On  the  question  of  damages,  the  court  said  :  "  The 
declaration  charges  a  violation  of  the  plaintiff's  right  of  prop- 
erty and  possession  by  force,  and  the  abduction  and  destruc- 
tion of  property  of  a  certain  value.  The  value  of  the  prop, 
erty,  or  the  amount  of  the  injury  done  to  it,  is  not  the  only 
ground  of  damages.  The  plaintiff  is  entitled  to  recover  for 
the  force  and  injury,  according  to  the  nature  and  circum- 
stances of  the  case,  and  the  aggravations  attending  it,  as  well 
as  for  the  value  of  the  property  taken.  Were  it  otherwise, 
a  person  so  disposed  might  forcibly  dispossess  another  of  any 
article  of  property  at  his  pleasure,  and  compel  the  owner, 
however  unwilling,  to  accept  of  the  value  in  its  stead."  In 
an  action  of  trespass  for  wrongfully  executing  a  distress 
warrant,  evidence  of  loss  from  the  interruption  of  the 
plaintiff's  business  is  admissible;  and  it  may  be  shown  that 
books  of  peculiar  value,  and  files  of  papers  inclisj^ensable  to 
the  plaintiff's  business,  but  of  little  value  to  others,  were  un- 
necessarily or  maliciously  taken. ^  In  an  action  for  wrong- 
fully removing  a  fence,  the  plaintiff  may  recover  not  only  for 
the  damage  done  to  the  fence,  but  for  the  injury  of  his  crops 
by  cattle  entering  through  the  breach,  in  the  feuce.'^  In  tres- 
pass for  taking  saw  logs,  with  a  general  averment  of  damages, 
the  jury  were  instructed  that  they  might  allow  the  plaintiff 
tke  profit  he  would  have  made  by  sawing  the  timber  and  by 
its  appreciation  in  price.^  Where  the  defendant  had  wrong- 
fully seized  the  plaintiff's  goods,  but  had  not  removed^them 

the  loss  of  its  possession.  *  *  *  *  But  the  amount  of  the  judgment  that 
ought  to  he  rendered  in  liis  favor,  even  when  no  exemplary  damages  are  claimed, 
is  not  necessarily  to  be  limited  to  an  indemnity." 

'  Denison  v.  Hyde,  6  Conn.  507.  '  3  Day,  447. 

'  Sherman  v.  Dutch,  16  111.  383.  '  Gray  v.  Waterman,  40  111.  52-2. 

'  Buckuam  v.  Nash,  12  Maine,  474. 


644         REI\rEDY  FOR  WRONGFUL  TAKING  OF   PROPERTY.     §  G24. 

from  the  liouse  in  which  the  plaintiff  resided,  and  another 
wrong-doer,  against  the  will  of  the  defendant,  seized  the 
goods  while  thus  in  the  defendant's  possession,  the  plaintiff 
was  held  entitled,  in  an  action  of  trespass,  to  recover  as  dam- 
ages from  the  defendant  the  amount  she  had  been  compelled 
to  pay  to  the  second  wrong-doer  to  redeem  the  goods  from 
him.^  A  bailor  is  entitled  to  damages  for  time  spent,  and 
expenses  incurred,  in  searching  for  j^roperty  wrongfully  taken 
fi'om  the  possession  of  his  bailee,^  In  Connecticut,  where  the 
defendant,  an  officer,  had  attached  and  removed  the  property 
of  the  plaintiff  under  a  writ  issued  and  placed  in  the  officer's 
hands  for  service  without  authority,  ifc  was  held,  that  the 
jury,  in  estimating  the  damages,  might  take  into  considera- 
tion the  necessary  expense  of  prosecuting  the  suit,  over  and 
above  the  taxed  costs;^  But  in  a  subsequent  case,  in  the 
same  State,  it  appearing  that  the  defendant,  who  was  a  pri- 
vate party,  had  acted  in  good  faith  and  with  an  honest  inten- 
tion, the  plaintiff  was  not  allowed  the  expenses  of  the  litiga- 
tion.^ *  Where  goods  were  taken  on  execution,  under  a 
warrant  of  attorney  and  judgment  which  were  afterward  set 
aside  as  illegal,  the  plaintiff  was  not  allowed,  as  part  of  the 
damage,  his  costs  incurred  in  vacating  the  warrant  of  attorney 
and  judgment.^ 

'  Keene  v.  Dilke,  18  L.  J.  Exch.  440. 

=  Heitzman  v.  Divil,  11  Penn.  St.  R.  264. 

^  Williams  v.  Ives,  25  Conn.  568.     See  avte,  §  394. 

''  Dii.ble  V.  Morris,  26  Conn.  416. 

^  Eolloway  v.  Turner,  6  Q.  B.  928. 

*  Dibble  v.  Mori'is,  suj:ra,  was  an  action  of  trespass  for  the  attachment  and 
removal  of  a  yoke  of  cattle  belonging  to  tlie  plaintifl'.  The  defendant  was  a 
creditor  of  the  assignor  of  the  cattle,  and  seemed  to  have  been  honestly  endeav- 
oring to  secure  his  debt  by  the  att^ichinent  of  the  cattle  whicli  had  belonged  to 
his  debtor,  and  v>ere,  in  fact,  in  the  debtor's  hands  at  the  time  of  the  attachment 
under  circumstances  calculated  to  excite  suspicions  of  the  bona  fides  of  the  as- 
signment. The  judge  before  whom  the  cause  was  tried  charged  the  jury  that, 
"in  addition  to  the  value  of  the  property  taken  by  the  defendant,  and  interest 
thereon,  it  would  be  proper  for  them  to  take  into  consideration  the  expenses 
necessarily  attendant  upon  prosecuting  his  clnim  in  court."  The  Supreme  Court 
held,  that  h;id  the  jury  been  instructed  that  if  they  found  the  attachment  wanton 
or  malicious  it  would  be  proper  for  them  to  give  the  plaintiif  the  amount  of  his 
expenses  in  the  litigation,  in  addition  to  the  value  of  the  property  and  interest 
thereon,  the  charge  would  have  been  imexccptionable,  but  that  without  that 
qualitication  it  was  wrong. 


§§  G25,  G2G.  DAMAGES   IN    GENERAL.  &45 

'  §  625.  If  there  is  an  abuse  of  authority  by  which  the  party 
becomes  a  trespasser  ab  initio^  the  phiintiff  may  recover  dam- 
ages as  well  for  the  part  of  the  injury  which  would  have 
been  justified  if  there  had  been  no  abuse,  as  for  that  part 
which  is  directly  caused  by  the  abuse.^  Where  goods  are 
seized  under  process  upon  a  regular  judgment,  but  in  a  place 
to  which  the  process  does  not  run,  the  owner  may  recover  the 
whole  value  of  the  goods,  and  not  merely  the  amount  of  the 
damage  which  he  has  sustained  by  their  being  taken  in  a 
wrong  place.^  So,  likewise,  if  an  officer  sell  property  on  ex- 
ecution at  a  place  other  than  that  named  in  the  notice  of  sale, 
without  adjourning  to  such  place  or  obtaining  the  consent  of 
the  execution  debtor,  the  measure  of  damagjes  in  an  action  of 
trespass  therefor  is  the  value  of  the  property,  although  the 
officer  has  paid  over  the  proceeds  of  the  sale  to  the  execution 
creditor.^  * 

§  626.  It  is  plain  that  the  trespasser  ought  not  to  derive 
a  benefit  from  his  wrongful  act,  and  that  he  may  be  allowed 
to  the  extent  of  the  value  of  the  property  taken,  with  inter- 
est, even  when  the  amount  exceeds  the  sum  that  would  be 
sufficient  to  indemnify  the  owner.  If  goods  uninsured  should, 
by  force  or  fraud,  be  removed  from  a  warehouse,  which  im- 
mediately thereafter  is  consumed  by  fire,  as  they  must  have 
perished  had  they  remained,  it  is  certain  that  the  owner  sus- 
tains no  loss  from  their  removal ;  yet  in  an  action  against  the 
wrong-doer  that  fact  cannot  be  given  in  evidence  to  bar  a 
recovery,  nor  can  the  recovery  be  for  a  less  sum  than  the 
value  of  the  goods  when  removed.     So,  if  the  goods  when 

'  Kerbey  v.  Denby,  2  Gale,  31 ;  1  Mees.  &  W.  336. 

=  Sowell  V.  Champion,  6  Ad.  &  E.  407;  2  Nev.  &  P.  027. 

=*  Hall  V.  Ray,  40  Vt.  576.     But  see  Briggs  v.  Gleason,  29  lb.  78,  contra. 

*  In  Ilall  V.  Ray,  snpra,  it  was  claimed  by  the  defendant  that  as  the  proceeds 
of  the  sale  were  applied  on  the  execution,  and  the  judgment  debt  was  thereby 
pro  tanto  satisfied,  the  damages  should  be  diminished  to  the  spme  extent.  The 
difficulty  in  the  way  of  adopting  that  view  arose  from  the  fact  that  the  sale  was 
illegal.  The  defendant  had  no  authority  to  sell  and  apply  the  property  in  the  man- 
ner he  did.  In  order  to  entitle  iiim  to  apply  the  property  in  payment  of  tliat  judg- 
ment, it  was  necessary  for  liim  to  make  a  legal  sale  of  it.  He  was  not  the  plaint- 
iff's agent.  He  was  the  agent  and  officer  of  the  law  proceeding  i?i  invitum  against 
the  plaintiff's  right  to  hold  and  dispose  of  his  own. 


G4G         REMEDY  FOR   WRONGFUL   TAKING   OF   PROPERTY.      §  627. 

wrongfully  taken  were  contracted  to  be  sold  at  a  less  price 
than  their  market  value,  the  owner  would  be  fully  indemni- 
fied by  giving  him  the  sum,  with  interest,  which  he  would 
have  realized  had  he  retained  the  possession ;  yet  it  cannot 
be  doubted  that  the  market  value  when  the  right  of  action 
accrued,  with  interest  from  that  time,  should  be  the  measure 
of  damages.^  ^" 


§  627.  Kemote  or  speculative  losses  should  not  be  con- 
sidered in  estimating  the  damages.  In  Boyd  v.  Brown,^ 
which  was  an  action  of  trespass  against  an  officer  for  wrong- 
fully attaching  a  vessel  belonging  to  the  plaintiff,  the  judge 
instructed  the  jury  that  they  were  to  estimate  the  damages 
according  to  the  value  of  the  vessel  at  the  time  of  taking, 
"and  the  additional  damages  sustained,  if  any."  It  was  held 
that  this  remark  did  not  justify  the  jury  in  assessing  damages 
for  the  breaking  up  of  the  voyage,  and  a  verdict  having  been 
found  for  the  plaintiff  for  $1,075  67,  it  was  held  excessive, 
and  a  new  trial  granted  on  that  ground.  In  an  action  for 
taking  corn,  the  plaintiff,  in  order  to  enhance  the  damages, 
will  not  be  allowed  to  prove  that  by  reason  of  the  trespass 
he  was  obliged  to  work  as  a  day  laborer  to  get  other  com.^ 
Where  oxen   are  taken,  a  sum  for  their  services  cannot  be 


'  Gardner  v.  Field,  1  Gray,  151;  Campbell  v.  Woodworth,  26  Barb.  648; 
Pozzoni  V.   Henderson,  2  E.  D.  Smith,  146;  Trout  v.  Kennedy,  47  Penn.  St.  R. 

387;  Nightingale  v.  Scannell,  18  Cal.  315. 

=  17  Pick.  453. 

'  Sims  V.  Glazener,  14  Ala.  695. 

*  In  20  N.  Y.  499,  the  Court  of  Appeals,  in  reversing  the  case  of  Campbell  v. 
Woodworth,  26  Barb.  648,  held  that  the  price  the  goods  brought  at  auction  was 
proper  evidence  on  the  question  of  damages,  to  be  allowed  such  weight  as  the 
circumstances  of  the  sale  should  entitle  it  to. 

In  Whitehouse  v.  Atkinson,  3  Car.  &  P.  344,  which  was  an  action  by  the 
assignees  of  a  bankrupt  against  a  sherifi'  who  had  sold  the  goods  on  execution. 
Lord  Tenterden,  Ch.  J.,  said  to  the  jury:  "With  respect  to  the  dan^ages,  a 
plaintiff  is  not  bound  by  the  sum  at  which  goods  have  been  sold  at  auction. 
But  where  the  plaintiff  is  an  assignee  who  must  have  sold  the  goods  if  they  had 
come  to  his  hands  before  any  sale  by  the  sheriff,  it  often  happens  that  the  jury 
consider  the  sum  at  which  they  were  actually  sold  at  auction  as  a  fair  measure  of 
damages." 

Where  in  an  action  for  trespass  by  which  the  plaintiff's  crop  was  exposed  and 
destroyed  by  cattle,  the  jury  have  given  the  highest  price  for  which  the  crop 
could  have  been  sold,  the  verdict  will  not  be  set  aside  on  the  ground  of  exces- 
sive damages  (Denby  v.  Hairstou,  1  Hawks.  315). 


§§  628,  G29.  EXEMPLARY   DAMAGES.  647 

added  to  tlieir  value.^  The  measure  of  damages  for  unlaw- 
fully seizing  and  detaining  a  steamboat  is  the  actual  damage, 
iri'espective  of  any  question  of  profits  or  earnings.^  * 

§  628.  In  case  of  the  destruction  of  property,  if  it  was  of 
no  intrinsic  value,  and  was  designed  and  used  to  insult  and 
annoy  the  defendant,  the  plaintifl:'  will  only  be  entitled  to  re- 
cover the  actual  value  of  the  materials  destroyed.  Where 
the  plaintiff  caused  a  picture  which  he  had  painted,  and 
which  he  called  "  The  Beauty  and  the  Beast,"  to  be  placed 
on  exhibition  in  Pall  Mall,  and  the  defendant  having  cut  the 
picture  in  pieces,  the  plaintiff  claimed  the  full  value  of  the 
picture  and  compensation  for  the  loss  of  the  exhibition,  the 
defendant  was  allowed  to  prove  in  mitigation  of  damages 
that  the  picture  was  a  scandalous  libel  upon  the  defendant's 
brother  and  sister.  Lord  Ellenborough  said  :  "  If  this  pic- 
ture was  a  libel  upon  the  persons  introduced  into  it,  the  law 
cannot  consider  it  valuable  as  a  picture.  Upon  an  applica- 
tion to  the  Lord  Chancellor  he  would  have  granted  an  in- 
junction against  its  exhibition,  and  the  j^laintiff  was  both 
civilly  and  criminally  liable  for  having  exhibited  it.  The 
jury,  therefore,  in  assessing  the  damages,  must  not  consider 
this  as  a  work  of  art,  but  must  award  the  plaintiff  merely 
the  value  of  the  canvas  and  paint  which  formed  its  com^^o- 
nent  parts." 

17.  Exemplary  damages. 

§  629.  If  the  trespass  be  committed  maliciously,  and  in  a 
Vanton  and  aggravated  manner,  and  with  the  design  to  vex 
and  harass  the  plaintiff,  exemplary  damages  may  be  al- 
lowed.^ t     Where  the  defendant,  at  the  time  of  committing 

'  Anthony  v.  Gilbert,  4  Blackf.  348. 

'  Callaway  &c.  Co.  v.  Clark,  32  Mo.  305. 

'  Huntlev  v.  Bacon,  15  Conn.  2G7 ;  Linsley  v.  Bushnell,  lb.  335 ;  Milburu  v. 
Beach,  14  Mo.  104;  McCullouoh  v.  Walton,  11  Ala.  492;  Anthony  v.  Gilbert,  4 
Blackf.  348;  Wylie  v.  Smithmerman,  8  Ired.  236. 

*  The  measure  of  damages  for  injury  to  property  is  not  the  cost  of  restoring 
it  to  its  original  condition  where  such  cost  exceeds  the  value  of  the  actual  dam- 
Age  sustained  by  the  owner  (Harvey  v.  Sides  &c.  Co.  1  Nev.  539). 

t  Wliere  the  injury  is  proved  to  have  been  committed  maliciously,  wantonly. 


648         REMEDY   FOR  WRONGFUL   TAKING   OF   PROPERTY.     §  629. 

the  offense,  opened  a  cliest  belonging  to  the  plaintiff,  and 
made  use  of  language  in  relation  to  the  contents  of  it  that 
wounded  her  feelings,  it  was  held  that  this  was  proper  to  be 
considered  in  assessing  the  damages.  "The  abuse  to  the 
plaintiff,  by  searching  her  chest  and  indulging  in  improper 
remarks,  at  the  time  and  in  the  manner  mentioned,  was  an 
aggravation  of  the  trespass,  coetaneously  existing  with  it, 
and  serving  to  show  the  malice  with  which  her  legal  rights 
were  violated."  ^  But  the  absence  of  any  wrongful  intent  will 
prevent  vindictive  damages.  Where,  in  an  action  of  trespass 
for  seizing  personal  property,  the  plaintiff's  counsel  admitted 
that  the  defendants  had  not  been  influenced  by  any  malicious 
motives  in  making  the  seizure,  and  that  they  had  not  acted 
therein  with  any  view  or  design  of  oppressing  or  injuring 
the  plaintiff,  it  was  held  that  such  admission  precluded  the 
plaintiff  from  claiming  any  damages  against  the  defendant 
by  way  of  punishment  or  smart  money,  but  that  after  such, 
admission  the  plaintiff  could  recover  only  the  actual  damages 
sustained.^  ^'    In  Sinclair  v.  Tarbox,'^  which  was  an  action  of 

to  gratify  revenge,  from  a  spirit  of  ill-will  and  a  desire  to  injure,  or  with  the 
view  of  obtaining  unlawfully  and  with  a  fraudulent  intent,  a  benefit  to  the  de- 
fendant, by  means  of  the  injury  to  the  property  of  the  plaintiff,  these  circum- 
stances of  aggravation  may,  with  great  propriety,  be  considered  in  fixing  the 
remuneration  to  which  the  plaintiff  is  entitled"  (Huntington,  J.,  in  Merrills  v. 
The  Tariff  Manf.  Co.  10  Conn.  384). 

In  Kentucky,  in  trespass  for  enticing  away  a  slave,  it  was  held  that  the  jury 
might  give  smart  money  (Tyson  v.  Ewing,  3  J.  J.  Marsh.  185). 

'  Treat  v.  Barber,  7  Conn.  274,  per  Hosmer,  Oh.  J. 

^  Hoyt  V.  Gelston,  13  Johns.  141;  affi'd  ou  error,  lb.  561. 

'  2  N.  Hamp.  135. 

*  In  Heath  v.  M'Inroy,  6  Johns.  277,  it  was  proved  that  the  defendant  took 
one  of  the  horses  from  the  plaintiff's  team,  although  forbidden  by  the  plaintiff. 
The  defendant  justified  the  taking  l)y  proving  that  it  was  done  under  au  attach- 
ment at  the  suit  of  tlie  defendant  against  a  third  person,  the  defendant  claiming 
that  the  horse  was  the  property  of  such  third  person.  It  appeared  that  the  horse 
had  previously  belonged  to  the  third  person,  who  delivered  him  to  the  plaintiff' as 
security  for  a  debt  for  which  au  attachment  had  been  issued  by  the  plaintiff 
against  such  third  person,  but  no  trial  had  ever  taken  place.  The  judge  at  the 
circuit  having  refused  to  certify  that  the  trespass  was  wilful  and  malicious,  the 
plaintiff  now  moved  that  he  should  indorse  his  certificate  on  the  record.  The 
Supreme  Court,  in  denying  the  motion,  said:  "The  better  construction  of  the 
statute  seems  to  be,  and  such  is  the  construction  now  given  to  it  in  England, 
that  it  rests  in  the  discretion  of  the  judge  who  tries  the  cause  to  determine,  from 
the  testimony,  whether  the  trespass  was  wilful  and  malicious.  The  court  will 
not,  therefore,  make  any  order  in  this  case.  If  the  court  were  now  to  give  au 
opinion,  we  should  not  be  inclined  to  consider  every  voluntary  trespass  per  se. 


§  629.  EXEMPLARY  DAMAGES.  640 

trespass  for  takii>g  and  carryiug  away  a  sleigh,  the  defendant 
relied  upon  his  innocence  of  wrongful  intention.  The  court 
remarked  that  the  intent  of  the  party  might  affect  the  dam- 
ages ;  and  that  as  the  defendant  appeared  not  to  have  been 
actuated  by  any  bad  motive,  nor  to  have  sold  or  converted 
the  sleigh  to  his  own  use,  he  should  pay  only  the  actual  in- 
jury caused  by  its  removal.  So  where  a  party  caused  prop- 
erty to  be  seized  under  an  execution  issued  on  a  void  judg- 
ment, he  not  suspecting  its  invalidity,  and  acting  under  the 
advice  of  counsel,  it  was  held  that  a  refusal  to  allow  exem- 
plary damages  was  proper.^  * 


wilful  and  malicious.  This  appears  too  narrow  a  construction.  The  statute 
seems  to  have  meant,  by  the  words  wilful  and  malicious,  some  act  done  mala  fide, 
or  with  an  intention  to  injure  or  vex  the  plaintift*  or  with  a  consciousness  of 
violating  right." 

'  Selden  v.  Cashman,  20  Cal.  56. 

*  It  would  seem  to  be  a  well  settled  rule  in  the  English  courts,  in  actions  of 
trover  and  trespass  delonis  asportatis,  that  when  the  taking  is  not  wilful  and  the 
property  is  not  materially  injured,  and  is  returned  to  the  real  owner,  the  plaint- 
iff will,  on  payment  of  the  costs,  proceed  at  his  peril  as  to  future  costs  (Bucklin 
v.  Beals,  38  Vt.  653).  In  Hart  v.  Skinner,  16  Vt.  138,  Redfield,  J.,  in  deliver- 
ing the  opinion  of  the  court,  after  reviewing  the  English  authorities  and  conced- 
ing their  correctness  upon  principle,  said:  "It  is  not  very  obvious,  then,  why 
the  court  should  not  have  the  same  discretion  here,  in  allowing  or  refusing  costs, 
which  is  exercised  by  the  courts  in  England.  There  it  is  every  day's  practice  to 
pay  money  into  court  (wliich  had  not  been  previously  tendered)  under  a  rule 
that  the  plaintiff  accept  the  same  and  discontinue  his  suit,  or  proceed  at  his  peril 
as  to  costs.  This  sura  paid  into  court  is  supposed  always  to  cover  the  costs  al- 
ready accrued,  and  a  specific  amount  of  debt  or  damage." 

In  Bucklin  v.  Beals,  supra,  Wilson,  J.,  in  commenting  upon  Hart  v.  Skinner, 
said:  "  Our  courts,  upon  equitable  principles,  have  introduced  the  practice  of 
allowing  payment  of  the  debt  and  costs  already  accrued  in  such  cases,  to  be 
made  into  court;' thereby  placing  the  defendant,  as  to  future  costs,  on  the  same 
ground  as  if  he  had  seasonably  made  a  tender  of  the  same  sum.  I  think  the 
good  sense  of  this  practice  is  no  less  obvious  in  its  application  to  some  cases  of 
torts;  and  it  would  seem,  upon  principle,  that  in  actions  of  trover  and  trespass 
de  lonis  asportatis,  when  the  takhig  is  not  wilful  and  the  property  is  not  essen- 
tially injured,  the  defendant  should  be  allowed  to  surrender  the  property,  and  to 
pay  the  actual  damage  for  the  taking  and  detention  of  it  into  court,  together 
with  the  costs  of  the  action  already  accrued ;  and  in  case  the  plaintiff  refused  to 
accept  the  money  paid  into  court,  he  must  proceed  at  his  peril,  insomuch  that  if 
at  the  trial  he  is  nonsuited,  or  if  the  jury  sliall  not  give  him  a  sum  exceeding 
the  money  paid  into  court,  he  will  be  obliged  to  pay  the  costs  of  the  action. 
The  numerous  actions  of  trover  and  trespass  de  bonis  asportatis  growing  out  of 
the  sale  and  transfer  of  personal  property,  where  the  vendor  had  no  title,  and 
where  by  his  false  and  fraudulent  representations,  or  by  some  indications  of 
ownership,  the  vendee  was  induced  to  make  the  purchase,  where  there  was  no 
intentional  wrong  on  the  part  of  the  purchaser,  and  no  real  damage  done  by 
him,  require  tliat  lie  should  be  relieved  from  the  rigor  of  the  rule  applicable 
to  cases  of  wilful  and  malicious  trespass.  The  rule  allowing  such  surrender 
of   the  property,    and    payment  in  the  discretion  of   the  court,  is   founded  in 


C50         REMEDY   FOR  WRONGFUL   TAKING  OF   PROPERTY.     §  629. 

equity,  which  is  '  the  correction  of  that  wherein  the.  law  (by  reason  of  its 
universality)  is  deficient.'  It  goes  upon  the  principle  that  when  the  defend- 
ant is  ready  and  willing  to  pay,  and  places  within  the  reach  of  the  plaintiff 
a  sum  of  money  equal  to  the  actual  debt  or  damage  recoverable  by  law,  and 
the  costs  already  accrued,  the  action  ought  not  to  be  further  prosecuted  at  the 
expense  of  the  defendant." 

Where  the  jury  find  part  of  the  issue  for  the  plaintiff,  and.  a  part  for  the 
defendant,  a  judgment  erroneously  entered  by  the  plaintiff  for  himself  on  the 
entire  issue  will  be  amended.  In  trespass  for  breaking  and  entering  a  dwelling- 
house,  and  seizing  and  taking  away  divers  goods  and  chattels  there  being,  the 
defendant  pleaded  that  the  house  was  not  the  plaintiff's,  nor  the  goods  his 
goods.  At  the  trial,  the  contest  was  as  to  the  right  to  the  goods.  The  jury 
found  that  the  house  and  part  of  the  goods  belonged  to  the  plaintiff.  The 
plaintiff  having  entered  the  postea  for  himself,  the  court  ruled  that  the  issue 
as  to  the  goods  was  divisible,  and  ordered  the  postea  to  be  amended  by  en- 
tering it  for  the  defendant  as  to  those  goods  which  were  found  not  to  be  the 
property  of  the  plaintiff  (Routledge  v.  Abbot,  3  Nev.  &  P.  560;  8  Ad.  &  E. 
592;  1  W.  W.  &  H.  372). 


INDEX. 


INDEX  TO  VOLUME  I. 


(The  references  are  to  the  pages.) 

ABATEMENT, 

plea  in,  for  non-joinder  of  party,  79. 

for  defects  in  process,  or  officer's  return,  627,  note. 
ACCESSION, 

property  in  goods  by,  363. 
ACCIDENT, 

unavoidable,  exempts  from  liability,  3,  136,  137. 

meaning  of,  3,  4,  136. 

plea  of,  when  sufficient,  3,  note. 

liability  for,  where  there  is  blame,  5. 

when  party  injured  is  wrongfully  on  premises,  5,  note. 

resulting  from  voluntary  act,  6,  7. 

when  it  will  excuse  a  battery,  136,  137,  138. 

burden  of  proof  in  cases  of,  138. 
ACQUITTAL, 

of  one  of  several,  96. 
ACTION, 

definition  of  trespass  as  an,  1,  3. 

of  trespass,  will  lie  for  want  of  skill  and  care,  5,  6,  note. 

judges  and  jurymen  not  liable  to,  8. 

will  not  lie  for  erroneous  exercise  of  discretion,  8. 

not  defeated  by  lawfulness  of  occupation,  9,  10. 

party  violating  statute  not  entitled  to,  10,  11. 

for  damages,  when  no  loss  can  be  proved,  13,  13. 

will  lie  without  proof  of  wrongful  intention,  13  ei  seq. 

where  persons  incite  or  aid  trespass,  33  et  seq , 

where  authority  is  delegated,  24,  35. 

where  a  nuisance  is  allowed  to  be  created  by  another,  24,  note. 

bad  motives  not  a  ground  of,  18,  19,  note. 

for  consequential  injury,  19  ei  seq. 

will  lie  although  other  causes  contributed  to  result,  81,  22. 

may  be  maintained  for  a  lawful  act,  21,  note. 

will  not  lie  when  cause  of  injury  remote,  33. 

for  injury  arising  subsequent  to  wrongful  act,  23. 

what  essential  to  maintain,  31. 

when  a  party  has  a  choice  of  remedies,  33. 

distinction  between  trespass  and  trespass  on  the  case,  31,  33,  note. 

invasions  of  right  entitling  party  to,  33,  34. 


G54  INDEX. 

ACTIOlii— continued. 

cause  of,  not  a  debt,  34,  note. 

for  wrong  committed  by  married  woman,  38,  39,  40. 

of  trespass,  may  be  maintained  against  minors,  41,  note. 

may  be  broiiglit  against  sheriff  for  acts  of  liis  deputy,  51. 

against  corporations,  52,  53., 

by,  and  against  executors,  54. 

in  the  case  of  joint  wrong-doers,  61  et  seq.,  71,  72, 7iote. 

when  recovery  a  bar  to,  62,  62  and  63,  note. 

cannot  be  maintained  against  fellow-trespasser,  67,  7iote. 

effect  of  embracing  distinct  causes  of,  in  same  count,  76,  7iote. 

may  be  brought  by  State,  80,  note. 

cross  action  in  assault  and  battery,  133,  134. 

by  trespasser  against  owner  of  land,  145,  146. 

for  seduction  of  daughter,  180,181,  182. 

in  New  York,  in  case  of  rape,  182. 

for  assault  and  battery,  will  not  lie  by  wife  against  husband,  189. 

between  husband  and  wife,  statutes  of  New  York,  189,  190,  note. 

where  brought  for  assault  and  battery,  195  et  seq. 

where  personal  injury  results  in  death,  200. 

for  injury  to  person  of  maiTied  woman,  200,  201,  202. 

distinct  causes  of,  in  assault  and  battery  cannot  be  united,  203,  204. 

damages  accruing  after  commencement  of,  258. 

against  several,  barred  bv  recoverv  against  one,  in  assault  and  battery. 
263,  note. 

waiver  of  right  of,  326,  327. 

of  false  imprisonment,  nature  of,  328,  329. 

how  brought  against  sheriff  for  wrong  of  deputy,  491,  492,  note. 

general  rule  as  to  who  may  maintain  in  trespass  to  personal  property, 

507  et  seq. 
where  goods  are  taken  from  officer,  528,  529,  530. 
where  goods  are  taken  from  a  servant,  530,  531. 
in  case  of  chattels  taken  from  officer  of  corporation,  531. 
where  goods  taken  belonged  to  a  person  deceased,  532,  533,  534. 
where  property  is  mortgaged,  534  et  seq. 

where  the  owner  has  parted  with  his  right  of  possession,  547,  548. 
in  case  of  bailment,  548  et  seq. 

where  there  has  been  a  conditional  sale,  554,  555,  556. 
in  case  of  agency,  557  et  seq. 
by  tenants  in  common,  561  et  seq. 

where  possession  of  goods  is  obtained  by  fraud,  567  et  seq, 
of  trespass  to  personal  property,  ground  of,  585,  586,  587. 
will  lie  against  infant  for  injuring  personal  property,  587. 
of  replevin,  effect  of,  as  a  bar,  598,  599,  600. 

of  trover,  conflict  of  authority  as  to  effect  of  judgment  in,  600,  601. 
proceeding  for  one  of  two  injuries,  not  a  bar,  602.     See  Trespass. 
ADJOURNMENT, 

of  sale  by  request  of  debtor,  officer  not  liable  for,  467,  468. 
insufficient  notice  of  sale  not  cured  by,  468,  note. 


INDEX.  655 

ADMISSIONS  AND  DECLARATIONS, 

ot  plaintiff  as  to  personal  injury,  230,  331. 

of  party  that  he  intends  to  commit  assault  and  battery,  231,  233. 

silence  tantamount  to,  233. 

one  denial  sufficient,  233,  334. 

of  plaintiff  respecting  defendant,  235. 

of  third  jjerson  in  action  for  false  imiirisonment,  346,  note. 

of  one  of  two  defendants,  346,  note. 

of  magistrate,  346,  note. 

of  vendor  of  goods,  631,  note.     See  Evidence. 
AFFIDAVIT, 

liability  of  party  when  warrant  issued  upon,  insufficient,  373,  273. 

right  of  party  to  have  it  filed,  273. 

need  not  be,  to  justify  arrest  by  ofiicer,  304,  note. 

though  defective,  a  good  defense  when,  435,  note. 
AFFRAY, 

right  of  private  person  to  restrain,  268. 

plea  justifying  arrest  on  account  of,  332,  333. 
AGENT.     See  Principal  and  Agent. 
AGISTER, 

may  maintain  action,  552,  553. 
AGREEMENT, 

property  made  chattels  by,  368,  369.    See  Contract. 
AIDER  AND  ABETTOR, 

Avho  deemed,  67. 
ALMSHOUSE, 

abuse  by  keeper  of,  187,  188,  189. 
AMENDMENT, 

after  verdict,  113,  114. 

of  plea  in  assault  and  battery,  315. 

upon  what  question  of,  depends,  594. 

when  exceptions  will  lie  to  refusal  of,  595,  note. 

of  judgment  erroneously  entsred,  650,  note. 
AMUSEMENT.     See  Public  Amusement. 
ANCIENT  LAW, 

of  distress,  exempted  tools  from  seizure,  411. 
ANCIENT  WINDOW, 

that  I3arty  was  obstructing,  no  excuse  for  a  battery,  142,  note. 
ANBIALS, 

agister  may  maintain  action  for,  552,  553.     See  Wild  Animals. 
ANSWER.     See  Plea. 
APPRAISERS, 

certificate  of,  admissible  in  evidence,  91,  note. 
ARBITRATION, 

when  submission  to,  a  bar  to  other  remedy,  86. 
ARREST, 

for  tort  of  wife,  39,  note. 

by  private  person  when  lawful,  267,  268,  269,  270. 

for  purpose  of  abducting  from  State,  370. 


656  INDEX. 

AR'REST—conti7iued. 

private  person  causing,  271  et  seq. 

rule  as  to  false  imprisonment  in  relation  to  the  process,  277,  278. 

causing  arrest  for  felony  without  process,  280,  281. 

malicious,  by  judgment  creditor,  286,  287. 

right  of  officer  to  detain  person  on  suspicion  of  felony,  290,  291. 

of  innocent  party  by  officer  without  warrant,  2!)2. 

for  assault  committed  in  view  of  officer,  292,  293. 

when  breach  of  by-law  ground  for,  293,  note. 

without  warrant,  duty  of  officer  in  making,  293,  294. 

made  on  Sunday,  constitutes  false  imprisonment,  295,  note. 

by  officer  in  case  of  escape,  296. 

requisites  of  warrant  of,  297  et  seq. 

duty  of  officer  to  communicate  substance  of  warrant,  301,  303, 

by  officer  under  execution  after  return  day,  304,  vote. 

officer  by  departing  from  order  of,  becomes  a  trespasser,  304,  note. 

tax  collector  not  required  first  to  search  for  property  in  New  Hampshii'e, 
805,  note. 

officer  may  make,  notwithstanding  he  is  shown  the  party's  discharge  as 
an  insolvent,  307,  308. 

of  privileged  person,  308,  309. 

of  wrong  person,  309. 

by  officer  after  receiving  notice  from  attorney  forbidding,  310. 

what  constitutes,  312,  313,  314. 

without  warrant,  plea  justifying  on  suspicion,  330,  331,  332. 

without  warrant,  plea  justifying  on  account  of  affray,  332,  333, 

under  process,  plea  justifying,  334,  335,  336. 

officer  justifying,  need  only  prove  process,  344,  345. 

by  private  person  for  felony,  how  justified,  347,  note. 

allowed  in  New  York,  for  injury  of  property,  587,  588,  note. 
ASSAULT  AND  BATTERY, 

meaning  of  assault,  121. 

how  defined  by  statute  of  Maine,  121,  note. 

acts  constituting  assault,  122. 

by  pointing  gun  or  pistol  at  another,  122,  123. 

abusive  language,  124. 

battery  defined,  124. 

cannot  be  conviction  for  assault  without  battery,  124,  note. 

acts  constituting  a  battery,  124,  125,  126. 

when  accident  will  excuse,  126,  127, 128. 

self-defense,  128  ei  seg'. 

person  attacked  not  bound  to  retreat,  130,  note,  143. 

lawful  to  kill  assailant,  when,  130,  143. 

when  injury  of  bystander  justifiable,  131,  132. 

justifiable  in  defense  of  property,  135  et  seq. 

taking  goods  from  a  wrong-doer,  136,  137,  146  et  seq. 

in  preventing  owner  from  taking  his  property,  137, 138. 

in  resisting  unlawful  attachment,  138,  139. 


INDEX.  657 

ASSAULT  AND  BXTTERY-^-contlnued. 

in  self-defense,  or  defense  of  property,  must  not  exceed  prevention,  129, 

141. 
not  a  justification,  that  party  was  obstructing  ancient  window,  142,  note. 
no  defense  that  party  kept  a  disorderly  house,  142,  note. 
of  trespasser  when  actionable,  145,  146. 
in  retaking  land,  149,  150. 
of  person  in  possession  of  land,  after  his  title  to  occupy  has  ended,  150, 

151. 
by  tenant  in  common,  151,  note. 
when  railroad  company  liable,  163,  163,  165,  166. 
of  child  at  sea,  libel  for,  187,  note. 
will  not  lie  by  woman  against  her  husband,  189. 
beating  horse  attached  to  wagon,  is  not,  190,  Tiote. 
aiding  or  encouraging,  193,  194. 
place  of  trial,  195  et  seq. 
holding  to  bail,  200. 
parties  to  action,  200,  201,  202. 
declaration,  203  et  seq. 
plea,  206  et  seq. 

allegations  of  aggravated,  how  regarded,  214. 
replication,  216  et  seq. 
right  to  begin,  219. 
burden  of  proof,  220. 

proof  must  correspond  with  pleadings,  220  et  seq. 
proof  of  time,  224. 
evidence  as  to  possession,  224  et  seq. 
when  new  assignment  necessary,  216,  note,  217,  218,  219. 
record  of  conviction,  when  evidence,  224. 
proof  of  malice,  228,  229,  230. 
proof  of  violence  by  third  person,  228,  note. 
admissions  and  declarations,  230  et  seq. 
proof  of  provocation,  235  et  seq. 
proof  of  mitigating  circumstances,  240,  241,  242. 
evidence  of  excessive  punishment  of  pupil,  230,  iiote. 
opinion  of  witness  not  admissible,  230,  note. 
evidence  as  to  character,  243,  244,  245. 
proof  of  consequences,  246,  247. 
evidence  as  to  pecuniary  condition  of  party,  247. 
damages  in  general,  248,  249. 
damages  for  wounded  feeling,  249,  250,  251. 
malicious  intent  as  affecting  the  damages,  251  et  seq. 
damages  for  assault  upon  child  or  servant,  255,  256,  257. 
damages  after  conviction  for  public  offense,  257. 
damages  accruing  after  commencement  of  action,  258. 
inadequate  or  excessive  damages,  259. 
costs,  260,  261. 
verdict,  261,  262,  263.   • 

Vol.  I.— 42 


C58  115  DEX. 

ASSAULT  AND  BATTBHY—catrtinued. 

action  against  several,  barred  by  recovery  against  one,  263,  note. 
ari-est  by  officer  for,  without  warrant,  292,  293. 
by  officer  in  retaking  goods  which  are  exempt,  402. 
ASSESSORS, 

of  taxes,  liability  of,  in  Massachusetts,  492  et  seq. 
protection  accorded  to,  in  New  York,  495. 
not  liable  for  mistakes,  498,  note. 
ASSIGNMENT, 

of  claim  for  tort,  37. 

may  be  otherwise  good,  though  void  as  to  creditors,  527,  528. 
conditional  vendee  may  make,  555,  556. 
ASSIGNOR  AND  ASSIGNEE, 

action  when  jwopertv  of  bankrupt  has  become  vested  in  assignees,  508, 

509. 
right  of  jaerson  to  be  treated  as  assignee  of  mortgage,  539,  540. 
ATTACHMENT, 

unlawful  of  goods,  right  to  resist,  138,  139,  140,  141. 

causing  void  process  of,  to  be  sued  out  and  levied,  399,  400. 

rolling  stock  of  railroad  liable  to,  413,  414. 

derivation  of  word,  417. 

object  of,  417. 

what  essential  to  constitute,  417,  418,  419. 

duty  of  officer  in  Vermont,  419,  420,  7iote. 

goods  need  not  be  secured  against  depredators,  420. 

not  dissolved  by  removal  of  property  into  another  State,  424. 

right  to,  depends  upon  law  of  place  of  property,  425,  426. 

duty  of  officer  in  executing,  443,  444,  445. 

will  not  excuse  officer  that  property  was  taken  from  him,  448,  7iote. 

hay  and  grain  not  in  general  removed,  444,  note. 

dissolved  by  delivery  of  property  to  owner,  444. 

of  goods  held  in  common,  458. 

of  partnership  property,  4G0.  461. 

officer  has  no  right  to  occupy  another's  building,  464. 

may  be  justified  without  showing  regular  subsequent  jiroceediugs,  471. 

officer  bound  to  act  in  a  proper  and  reasonable  manner,  472,  473. 

of  proceeds  of  sale,  statute  of  Maine,- 472,  note. 

excessive,  proof  in  action  for,  472,  473,  7iote. 

goods  held  under,  may  be  again  attached,  510. 

against  mortgagor,  liability  of  officer  for  removing  goods  under,  537. 

property  left  with  mortgagor  liable  to,  544,  545,  7iote. 

qualified  property  in  chattels  liable  to,  549,  iwte. 

question  as  to  fraud  in,  for  jury,  581,  582. 

by  owner,  -will  not  prevent  his  showing  that  the  property  is  his,  622,  623. 
ATTORNEY, 

liability  of  jjarty  for  acts  of,  24,  25. 

liable  with  client,  to  false  imprisonment,  286. 

notifying  officer  not  to  make  arrest,  efi"ect  of,  310. 

I}laintifl''s  fee  as,  cannot  be  included  in  damages,  642. 


INDEX.  G59 

AUCTIONEER, 

may  maintain  action  for  injury  of  goods,  554. 
AUTHORITY, 

of  statute,  rule  as  to  justification  under,  55  et  seq, 

how  pleaded,  85. 

question  of  excess  of,  for  jury,  143,  note. 

BAIL, 

in  actions  for  assault  and  battery,  200. 

may  take,  detain,  or  surrender  his  principal,  268,  note. 

when  tender  and  refusal  of,  should  be  replied  to  specially,  339,  note. 
BAILEE, 

excused  when  goods  are  taken  from  him,  386. 

cannot  delegate  trust,  386,  note. 

of  mortgagee,  justification  by  officer  for  takintr  goods  from,  539,  note. 

may  maintain  action  for  property  taken  from  him,  548,  549. 

action  when  he  has  not  absolute  right  to  possession,  549,  note. 

owner  of  goods  taken  from  bailee  cannot  maintain  action,  550,  551. 

must  show  rightful  possession,  569,  570. 

becomes  keeper  for  o-wner  by  operation  of  law,  578,  579. 

not  liable  to  trespass  in  North  Carolina  unless  he  has  destroyed  23rop- 
erty,  587,  note. 

damages  in  action  by,  against  owner,  641. 

damages  in  suit  by,  against  sti'anger,  041,  042. 
BANKRUPT, 

action  when  property  has  become  vested  in  assignees,  508,  509. 
BATTERY.     See  Assault  and  Batteky. 
BEES, 

may  be  subject  of  property,  357. 

when  unreclaimed,  belong  to  first  occupant,  357. 

belong  to  owner  of  hive  as  long  as  he  can  keep  them  in  sight,  357,  358. 

rule  where  they  occupy  a  tree  on  another's  land,  358. 

ownership  in,  ratione  soli,  358,  note. 

property  in,  by  the  civil  law,  358,  note. 
BILL   OF   SALE, 

purchaser  m.^y  maintain  action  without  delivery,  525. 
BLASTING, 

injury  caused  by,  35. 
BOND, 

wh(-n  the  giving  of  must  be  alleged,  610. 
BORROWER, 

may  ratify  or  repudiate  exchange  by  lender,  523,  524. 
BREACH   OF   THE    PEACE, 

words  or  acts  of  provocation  may  have  the  effect  of,  2. 
BREAKING  AND   ENTERING, 

unlawful,  may  be  resi-t id.  140. 
BUILDING, 

when  deeme.l  personal  property,  377,  378,  379. 

right  of  mortgagee  of  land  to,  379,  380. 


660  LNDEX. 

BURDEN   OF   PROOF, 

in  cases  of  accident,  138. 
in  assault  and  battery,  220. 
when  on  defendant,  in  false  imprisonment,  344. 
BY-LAW, 

power  to  arrest  for  breach  of,  must  be  expressly  given  by  statute,  293, 

note. 
cannot  impose  unreasonable  restraints,  293,  note, 
may  be  good  in  part,  and  bad  in  part,  293,  note. 

CANAL-BOAT, 

action  for  injury  of,  34. 
CARRIER.     See  Common  Carrier. 
CERTIFICATE, 

of  officer's  doings  must  contain  all  the  facts,  318,  319. 
CERTIORARI, 

powers  of  justices  of  the  peace  superseded  by,  58,  note. 
CHAMPERTY.     See  Maintenance. 
CHARACTER, 

evidence  as  to,  in  assault  and  battery,  243,  244,  245. 

of  plaintiif,  not  admissible  in  false  imprisonment,  350,  note. 
CHATTELS.     See  Goods. 
CHILD.     See  Parent  ant>  Child. 
CHURCH, 

right  of  sexton  to  eject  undertaker  from,  160,  note. 
See  Religious  Meeting. 
CIRCUMSTANCES.     See  Evidence. 
CIVIL  LAW, 

relative  to  fixtures,  372,  note. 

property  in  bees  under,  358,  note. 

rule  of,  where  goods  are  altered,  359. 

rule  of,  where  goods  are  intermingled,  364.  , 

set  aside  contract  obtained  by  force  or  fear,  631,  note. 
CLERK, 

has  no  authority  to  detain  and  search  another,  285. 
CODE, 

of  New  York  relative  to  misjoinder  of  plaintiflTs,  79,  80. 
assignment  of  claim  for  tort  under,  37. 
relative  to  liability  of  husband  for  tort  of  wife,  39,  note. 
COLLECTOR, 

liable  for  unauthorized  seizure  of  goods  for  taxes,  499,  501. 

protected  when  an  officer  de  facto,  500. 

must  act  strictly  within  statute,  500,  504,  505,  note. 

how  far  protected  by  warrant,  502,  503,  504. 

of  internal  revenue,  not  liable  for  mistaken  seizure,  502,  note. 

effect  of  purchasing  at  his  own  sale,  505. 

liability  where  owner  of  property  sold  buys  it,  505,  506. 

sentence  of  restitution  is  proof  of  illegal  seizure,  615.  ' 

See  Taxes. 


INDEX.  G61 

COMMITMENT, 

must  show  grounds  of,  300,  301. 

must  state  the  facts  which  justify  it,  318,  319. 

magistrate  liable  for  consequences  of,  826. 
COMMON  CARKIER, 

action  against,  founded  in  tort,  383,  note. 

may  maintain  action  for  injury  of  goods,  553,  554. 

forfeits  his  lien  by  failing  to  fulfil  contract,  561,  7iote. 
COMMON  LAW, 

doctrine  of,  as  to  contribution,  28. 

non-joinder  of  party  plaintiff,  how  objected  to,  at,  79. 

liability  of  husband  at,  for  torts  of  wife,  38. 

doctrine  of,  that  torts  die  with  the  person  innovated  upon,  54. 

relative  to  agreeing  to  a  trespass  after  its  commission,  66,  note. 

objection  for  non-joinder  of  party,  how  made  at,  79. 

rule  of,  as  to  pleading  a  justification,  83,  84. 

Ijleadings  and  evidence  at,  84,  note. 

rule  of,  as  to  allegation  of  time,  92,  note. 

justifies  a  battery  in  defense  of  property,  135. 

right  of  nation  to  give  redress  for  personal  injury  at,  195. 

when  courts  of,  have  cognizance  of  marine  trespasses,  197,  198. 

remedy  for  seduction  at,  181. 

damages  at,  for  personal  injury  of  wife,  200,  201. 

rule  of,  as  to  property  in  altered  goods,  360,  361,  363. 

rule  of,  in  relation  to  the  intermingling  of  goods,  364,  365. 

chattels  in  possession  of  debtor,  cannot  be  taken  at,  410,  411. 

goods,  how  bound  by  levy  at,  423,  note. 

personal  property  vests  in  officer  at,  when,  443. 

right  of  husband  to  wife's  personal  property  at,  453. 

did  not  permit  immediate  sale  of  distress,  504. 

mortgage  of  future  acquired  chattels  at,  541,  543. 

right  of  lien  at,  561,  note. 

sale  in  market  overt  at,  568.  note. 

right  to  abate  nuisance  at,  598,  note. 
COMMON  SCHOOL  DISTRICT. 

See  School  District. 
COMPLAINT, 

party  making,  not  liable  for  false  imprisonment,  275,  376,  377. 
See  Declakation. 
CONDITIONAL  SALE, 

action  in  case  of,  554,  555. 

vendee  may  assign  property,  555,  556. 

right  of  seller  of  goods  to  repossess  himself  of  them,  403,  556. 
CONDUCTOR, 

of  omnibus,  abuse  by,  43. 

wilful  detention  of  train  by,  43. 

See  Master  and  Servant. 
CONFESSION  OF  JUDGMENT, 

By  one  of  two  joint  defendants,  67,  note. 


602  INDEX. 

CONFUSION, 

effect,  where  goods  canuot  be  distinguished,  303,  3l>4. 

rule  of  the  coramou  law,  where  wilful,  364,  365. 

civil  law  rule,  364. 

rule  in  case  of  consent,  accident,  or  negligence,  365. 

sale  in  case  of,  365,  366. 
CONSEQUENTIAL  INJURY, 

action  for,  19  e^  seq. 

party  entitled  to  redress,  though  act  lawful,  21,  note. 

when  remote,  not  a  ground  of  action,  22. 

arising  subsequent  to  wrongful  act,  22. 
CONSIGNEE, 

liability  of  sheriff  for  seizing  goods  in  custody  of,  548,  549. 
CONTRACT, 

obtained  by  duress,  set  aside  by  civil  law,  631,  note. 

relieved  against  in  equity,  031,  note. 

carrier  failing  to  fulfil,  forfeits  his  lien,  561,  note. 
CONTRIBUTION, 

cannot  be  claimed  by  Avrong-doer,  28,  67,  note. 
CORPORAL  PUNISHMENT, 

by  master  of  vessel,  187. 
CORPORATION, 

secret  intention  of  members  of,  not  a  ground  of  action,  19,  note. 
'  action  of  trespass  may  be  maintained  against,  52,  53. 

acts  of,  strictly  construed,  50. 

liable  for  acts  of  its  servants,  43,  44,  note.^  162,  103,  165, 166. 

president  of,  not  in  general  liable,  179, 180. 

levy  upon  projierty  of,  by  wrong  name  not  trespass,  439,  note. 

acti(m  in  the  case  of  the  wrongful  taking  of  goods,  531. 

town  need  not  be  alleged  as,  610,  611. 
COSTS, 

"where  there  is  a  settlement  of  one  of  two  actions,  70,  71,  note. 

where  separate  actions  are  brought  against  several,  109. 

in  New  Hampshire,  in  actions  of  review,  109,  note. 

in  action  for  assault  and  battery,  260,  201. 

when  plaintiff  will  proceed  at  his  peril  as  to,  649,  note. 
COURT, 

in  England,  does  not  favor  verdict  where  there  is  no  injuiy,  13,  note. 

duty  to  instruct  jury  to  find  for  defendant,  101. 

instruction  of,  may  be  revised  though  not  objected  to,  118. 
CREDIT, 

goods  sold  upon,  cannot  be  retaken,  405. 

when  loss  of,  admissible  in  evidence,  620. 
CROPS, 

cannot  be  reserved  by  parol,  375,  note. 

declaration  when  tortiously  cut,  382,  note. 

DAMAGES, 

action  for,  though  no  loss  can  be  proved,  12,  13. 


INDEX.  663 

D  AM  A-GES— continued. 

not  allowed  in  Engjlaud  where  there  is  no  injury,  13,  note. 

when  misunderstanding  will  go  in  reduction  of,  14,  note. 

considered,  rather  than  intent  or  malice,  15. 

cannot  be  recovered  where  cause  of  injurj^  remote,  22. 

for  injury  subsequent  to  wrongful  act,  32. 

when  execution  stayed  against,  63,  note. 

settlement  of  claim  for,  68  et  seq. 

where  there  are  two  actions,  69,  70. 

when  reduced  p'o  taiito,  72. 

how  alleged  in  declaration,  78,  79. 

special,  when  admissible  in  evidence,  91. 

insult  and  injury  of  wife  of  plaintiif  not  a  ground  for,  91,  note. 

certificate  of  appraisers  as  to,  may  be  given  in  evidence,  91,  7iote. 

need  not  be  assessed  on  all  the  counts,  99,  note. 

release  of  codefendant  admissible  in  mitigation,  100. 

instruction  not  to  find,  error,  101,  102. 

for  involuntary  trespass,  102. 

prospective,  102. 

when  special  may  be  proved,  103. 

remote  not  allowed,  103. 

not  confined  to  pecuniary  loss,  103,  104. 

in  action  against  several,  105  et  seq. 

expenses  of  suit,  104,  105. 

what  may  be  done,  when  separately  assessed  in  joint  action,  106. 

new  trial  on  account  of,  117,  118,  119. 

who  entitled  to,  in  case  of  personal  injury  of  wife,  200,  201,  202. 

declarations  of  plaintifi"  in  mitigation  of,  235,  236  et  seq. 

former  conduct  of  plaintiff  will  not  mitigate,  239,  240. 

in  general,  in  assault  and  battery,  248,  249. 

must  be  du-ect  result  of  act  in  assault  and  battery,  248,  note. 

from  wounded  feeling,  in  assault  and  battery,  249,  250,  251. 

afi'ected  by  malicious  intent,  251  et  seq. 

for  assault  upon  child  or  servant,  255,  256,  257. 

after  conviction  for  public  offense,  257. 

accruing  after  commencement  of  action,  258. 

inadequate  or  excessive,  in  assault  and  battery,  259. 

exemplary,  in  false  imprisonment,  350,  351,  352. 

in  false  imprisonment  which  was  not  malicious,  351. 

excessive,  in  false  imprisonment,  where  there  was  ground  of  suspicion, 

351,  note. 
in  false  imprisonment,  plaintiff  entitled  to  what  he  has  been  compelled 

to  pay,  352,  353. 
where  a  sum  has  been  accepted  in  satisfaction,  353,  354. 
remote  in  false  imprisonment,  not  recoverable,  353,  7io(e. 
in  joint  action  for  false  imprisonment,  354. 
must  be  excessive  to  be  ground  for  reversal  in  false  imprisonment,  354, 

note. 
mitigated  by  return  of  goods  which  are  accepted,  406. 


664  INDEX. 

DAMAGES— f(?«  tinucd. 

rule  of,  in  action  by  judgment  creditor,  530,  ?zoi?f. 

what  mortgagee  entitled  to,  in  action  against  officer,  535,  536,  note. 

lor  taking  property,  evidence  in  mitigation,  632,  633,  634. 

in  trespass  to  personal  property,  to  be  given  for  whole  injury,  636. 

nominal,  when  defendant  is  defaulted,  636,  note. 

debt  cannot  be  defalked  against,  636,  637,  note. 

judgment  in  attachment  suit  cannot  be  deducted,  637,  note. 

for  trespass  to  personal  property  when  in  discretion  of  jui-y,  637. 

when  rule  of,  one  of  compensation  merely,  687,  note. 

in  general,  for  the  mere  taking  of  goods,  637,  638. 

when  value  of  goods  not  the  measure  of,  638,  639,  640,  note. 

where  officer  has  used  goods.  639,  640. 

in  action  by  married  woman  for  her  property,  639,  note. 

exercise  of  ownership  in  mitigation  of,  640. 

in  action  by  moftgagee  against  officer,  640,  641. 

where  goods  are  deposited  with  pawnbroker,  641, 

where  property  is  seized  by  mortgagee  before  forfeiture,  641. 

when  action  is  by  bailee  against  owner,  641. 

in  suit  by  bailee  against  stranger,  641,  642. 

cannot  include  plaintiff's  fee  as  attorney,  642. 

in  action  against  sheriff  for  seizing  goods  in  transit,  641,  note. 

rule  of,  in  New  York  where  property  is  detained,  643,  643,  note. 

may  be  given  for  aggravations  as  well  as  for  yalue  of  property,  642,  643, 
644. 

where  the  seizure  of  goods  is  with  an  abuse  of  authority,  645. 

owner  entitled  to  value  although  more  than  an  indemnity,  645,  646. 

remote  or  speculative,  not  proper,  646,  647. 

when  only  for  value  of  materials  destroyed,  647. 

exemplary,  in  trespass  to  personal  property,  647,  648,  649. 
DAUGHTER.    See  Parent  and  Child. 
DEBT, 

cannot  be  defalked  against  damages,  636,  637,  note. 

cause  of  action  in  trespass,  is  not,  34,  note. 
DEBTOR  AND  CREDITOR, 

presumption  of  fraud  from  continued  possession  of  vendor,  574,  575. 

effect  of  return  to  owner  of  goods  sold  to  creditor,  576,  577. 

minor  entitled  to  earnings  as  against  creditors  of  father,  580,  note. 

judgment  best  evidence  of  the  relation  of,  626,  note. 
DECLARATION, 

principal  act,  to  be  clearly  alleged,  76. 

general  description  not  remedied  by  special  finding,  76. 

eflfect  of  embracing  distinct  causes  of  action  in  one  count,  76,  note. 

description  of  place,  77. 

allegation  of  time,  77,  78,  92,  note. 

waiver  of  objection  to,  76,  note,  78,  note. 

allegation  of  damage,  78,  79. 

non-joinder  of  party,  how  objected  to,  79. 

nuejojuder  of  plaictiflf,  remedy  under  New  York  Code,  79,  80. 


INDEX.  665 

DECLARATION— cowiJjm/etZ. 

whole  declaration  need  not  be  proved,  91. 

for  seduction,  cured  by  verdict,  182,  note. 

in  assault  and  battery,  203  et  seq. 

technical  errors  in,  disregarded,  206,  note. 

allegations  of  aggravated  assault  and  battery,  214. 

proof  of  substance  of,  in  assault  and  battery  sufficient,  220,  221. 

where  there  has  been  an  arrest  for  a  tax  wrongfully  assessed,  329. 

for  false  imprisonment,  need  not  allege  malice,  329. 

a  claim  for  special  damage  in  false  imprisonment,  must  be  averred,  829, 
380. 

when  a  growing  crop  is  tortiously  cut,  382,  7iote. 

in  trespass  to  personal  property,  588  et  seq. 

must  be  averment  of  plaintiflf's  title,  591. 

substantial  averment  of  property  in  plaintiff  sufficient,  591,  592. 

need  not  allege  that  goods  were  in  plaintiff 's  possession,  592. 

where  plaintiff  sets  up  title  under  dormant  execution,  592. 

count  for  injuring  property  cannot  be  joined  to  count  for  injuring 
health,  592. 

when  it  will  entitle  to  recovery  for  successive  trespasses,  598. 

upon  what  question  amendment  of  depends,  594. 

when  excejitions  will  lie  to  refusal  of  amendment,  595,  7nde. 
DECLARATIONS.     See  Admissions  and  Declarations. 
DH  FACTO, 

officer,  validity  of  acts  of,  488,  489. 
DEFAULT, 

judgment  by,  in  action  against  several,  108,  114. 
DEFENSE, 

suppositions  not  matters  of,  14. 

law  of  State  in  rebellion,  is  not,  25,  note. 

of  property,  will  justify  a  battery,  135  et  seq. 

of  property,  must  not  exceed  prevention,  141,  142. 

not  a  justification  of  battery  that  party  was  obstructing  ancient  window 
142,  note. 

no  excuse  for  a  battery  that  party  kept  a  disorderly  house,  142,  7iote. 

of  property,  not  lawful  without  right  of  possession,  143,  144. 

is  not,  that  wrong  was  committed  by  another,  595,  596,  597,  598. 
DEFINITION, 

of  trespass  as  a  wrong  and  a  remedy,  1,  2. 

of  unavoidable  accident,  3,  4. 
DEMURRER, 

where  the  trespass  is  laid  by  way  of  recital  only,  76. 

objection  not  made  by,  is  waived,  76,  note. 
DEPOT, 

is  not  a  public  highway,  177. 

right  of  traveler  to  occupy,  177,  178,  179. 

license  to  remain  at,  revocable,  179. 
DEPUTY   SHERIFF, 

action  by,  against  sheriff,  490,  note. 


066  INDEX. 

DEPUTY  SEBHIFF— continued. 

when  jointly  liable  with  sheriff,  491,  492. 

judgment  in  favor  of,  is  evidence  for  sheriff,  491,  note. 

may  maintain  action  for  property  taken  from  him,  529,  tiote. 
See  Sheriff. 
DISCRETION, 

erroneous  exercise  of,  not  a  ground  of  liability,  8. 
DISORDERLY  HOUSE, 

the  keeping  of,  will  not  excuse  a  battery,  142, 7iote. 
DISTRESS, 

ancient  law  of,  exempted  tools  from  seizure,  411. 

immediate  sals  of,  not  pennitted,  504. 

when  justified  under  the  general  issue,  600. 
DURESS, 

evidence  under  plea  of,  630,  631. 

civil  law  set  aside  contract  obtained  by,  631,  7iote. 
DWELLING-HOUSE, 

forcible  entry  into,  may  be  resisted,  140. 

EJECTION.     See  Forcible  Removal. 
ELECTION, 

as. to  time,  in  declaration,  78,  note. 

in  case  of  levy  and  sale  on  different  days,  593,  7iote. 
ENGLISH  COURTS, 

do  not  favor  verdicts  where  there  is  no  injury,  13,  note. 
ERROR, 

by  instructing  to  find  for  defendant  if  no  damage,  101,  102. 

cannot  be  taken  advantage  of  by  defendant  if  in  his  favor,  105,  note. 

mistake  in  assessment  of  damage,  how  cured,  106,  107,  note. 

by  instructing  jury  to  acquit,  on  motion  of  plaintiff,  112. 

proceeding  valid  until  reversed  on,  115. 
ESCAPE, 

arrest  by  officer  in  case  of,  296. 
ESTOPPEL, 

party  claiming,  must  have  relied  upon  other  party,  623,  624. 
EVIDENCE, 

of  language  of  defendant,  2. 

of  necessity  for  act,  2. 

of  intention,  17. 

matters  that  may  not  be  proved  under  the  general  issue,  83,  84,  note. 

where  a  notice  accompanies  the  general  issue,  84,  note. 

under  plea  of  not  guilty,  and  notice  of  former  recovery,  84,  85,  note. 

where  there  are  affirmative  pleas,  90. 

in  case  of  a  justification  and  new  assignment,  90. 

whole  declaration  need  not  in  general  be  proved,  91, 

of  circumstances,  when  admissible,  91. 

of  special  damage,  91. 

opinions  of  witnesses  not  admissible,  91. 

certificate  of  appraisers,  91,  7iote. 


INDEX.  667 

EVIDENCE— coM^/«  ueO. 

time  need  not  be  proved,  91,  9-2,  617. 

of  laws  of  State,  93,  03. 

in  case  of  joint  defendants,  93,  94. 

of  judgment  rendered  in  relation  to  the  same  acts,  97,  99. 

what  facts  deemed  to  be  in  issue,  97,  98,  note. 

of  release  of  codefendant,  100. 

cumulative,  in  discretion  of  court,  100. 

same  testimony  may  be  waived  and  objected  to,  101. 

sufficiency  of,  for  jury,  101. 

duty  of  court  to  instruct  jury  as  to,  101. 

new  trial  on  account  of,  116,  117. 

when  not  admissible  in  assault  and  battery  without  new  assignment, 

21%,  note,  217,  318. 
burden  of,  in  assault  and  battery,  230. 
proof  of  substance  of  declaration  in  assault  and  battery  sufficient,  230, 

231. 
one  of  several  counts  in  assault  and  battery  only  need  be  proved,  331. 
when  proof  of  other  assaults  not  allowed,  231,  223. 
under  plea  of  son  assault  demesne,  223. 
where  a  series  of  personal  injuries  are  charged,  223. 
record  of  conviction  of  assault  and  battery,  224. 
time  of  assault,  334. 

possession  of  place  of  assault,  224,  225,  226,  227. 
proof  of  malice  in  assault  and  battery,  328,  229,  230. 
violence  by  third  person,  338,  note. 

admissions  and  declarations  in  assault  and  battery,  330  et  seq. 
provocation  in  assault  and  battery,  235  et  seq. 
circumstances  mitigating  assault,  240,  241,  243. 
opinion  of  witness  not  admissible,  230,  note. 
of  excessive  punishment  of  pupil  by  master,  230,  note. 
that  plaintiff  attempted  to  deceive  jury,  233,  note.  f 

proof  of  consent  in  action  for  assault  on  female,  243. 
proof  of  character  in  assault  and  battery,  248,  244,  245. 
consequences  of  act  in  assault  and  battery,  246,  247. 
pecuniary  condition  of  party,  247. 

expenses  of  litigation  in  action  agaiust  railroad  company,  346,  note. 
what  must  be  proved  to  excuse  giving  another  in  custody,  384,  285. 
officer's  return,  how  far  admissible  in  his  favor,  319. 
in  false  imprisonment,  facts  and  circumstances  must  be  proved,  341 , 
in  action  for  false  imprisonment,  violence  need  not  be  proved,  342. 
proof  of  animus  of  defendant,  in  false  imprisonment  proper,  343. 
when  burden  of  justifying  imprisonment  on  defendiint,  344. 
sufficient  for  officer  justifying  arrest,  to  prove  process,  344,  345. 
where  there  is  a  justification  under  an  execution,  proof  as  to  process 

not  proper,  345,  346. 
of  right  of  wd.y,  to  show  character  of  plaintiff's  act,  341,  note. 
in  action  against  two,  proof  of  verdict  in  favor  of  onenot  proper,  S'i4:,note. 
acts  and  declarations  of  third  person  in  false  imprisonment,  346,  note. 
admissions  of  one  of  two  defendants  in  false  imprisonment,  346,  no  te. 


068  IXDEX. 

EVIDENCE— co)itinued. 

of  language  of  magistrate,  34G,  note. 

where  several  are  charged  with  false  imprisonment,  346. 

probable  cause  in  action  for  giving  into  custody,  346,  347. 

in  mitigation,  not  confined  to  time  of  alleged  wrong,  349,  350. 

prior  conviction  of  third  party,  not  admissible,  350,  note. 

if  striken  out,  will  cure  improper  admission,  350,  note. 

in  action  for  excessive  attachment,  472,  473,  note. 

in  action  against  sheriff,  judgment  in  favor  of  deputy,  491,  note. 

of  possession  of  goods,  614,  615. 

of  wrongful  taking,  615,  616. 

of  value  of  property  taken,  617. 

of  circumstances,  in  action  for  taking  goods,  017,  618. 

of  motive,  in  action  for  taking  and  carrying  away  goods,  618,  619. 

presumptions,  in  trespass  to  personal  property,  630  et  seq. 

in  justification  of  taking  personal  propQrty,  624  et  seq. 

loss  of  credit,  when  admissible,  620. 

acts  and  declarations  of  vendor  of  goods,  621,  note. 

where  there  is  a  justification  under  process,  625,  626. 

officer's  return,  627,  628,  629,  630. 

under  plea  of  duress,  630,  631. 

in  justification,  must  conform  to  plea,  631. 

defendant  need  not  disprove  taking  when  omitted  by  plaintiff,  632. 

in  mitigation  of  damages  for  taking  personal  property,  632,  633,  634. 

objections  to,  to  be  made  at  trial,  035. 
EXCEPTIONS, 

instruction  may  be  revised  upon,  though  not  objected  to,  116. 

when  they  will  lie  to  refusal  of  amendment,  595,  note. 
EXCUSE.     See  Justification. 
EXECUTION, 

where  two  actions  are  brought,  63,  note. 

not  rendered  void  by  misnomer  of  town,  300,  note. 

exempt  goods  taken  on,  may  be  retaken,  402. 

what  necessary  to  constitute  a  levy,  420,  421. 

constructive  levy  in  case  of  second  execution,  421. 

levy  upon  joint  efl'ects,  422. 

when  levy  extends  constructively  to  subsequently  acquired  goods,  423, 
423. 

goods,  how  bound  by  levy  at  common  law,  423,  note. 

leaving  goods  with  debtor,  not  an  abandonment,  424. 

officer  need  not  inquire  into  service  of  original  writ,  438,  439,  440. 

when  voidable  only,  protects  officer  and  party,  439,  440. 

protects  officer,  though  satisfied,  440. 

personal  property  vested  in  officer,  by,  443. 

purchaser,  no  right  to  take  goods  against  command  of  officer,  443,  note. 

officer  not  obliged  to  receive  amount  of,  without  his  fees,  468,  note. 

sale  of  goods  of  tenants  in  common,  under,  459,  460. 

officer  liable,  although  he  do  not  remove  property,  462,  463. 

officer  liable  for  removing  goods  at  improper  time,  464. 


INDEX.  669 

EXECUTION"  —cojitinued. 

authority  of  person  specially  authorized  to  serve,  487,  488. 

against  administrator,  form  of,  532,  533,  note. 

interest  of  mortgagor,  subject  to,  544. 

arrest  upon,  in  New  York,  for  injury  of  property ,  587,  588,  note. 
EXECUTOES  AND  ADMINISTRATORS, 

actions  by  and  against,  54. 

may  maintain  action  for  taking  goods,  533,  533,  534. 

execution  against,  how  regarded,  532,  533,  note. 

actions  by,  under  statute  of  New  York,  533,  534,  note. 

action  by  executor  of  mortgagee  for  timber  cut,  537,  note. 
EXEMPLARY  DAMAGES.     See  Damages. 

FACTOR, 

action  in  case  of  loss  of  lien  of,  560,  561. 
FALSE  IMPRISONMENT, 

what  constitutes,  264. 

may  be  committed  without  force,  265,  7iote. 

must  be  restraint  of  will,  266. 

cannot  be  committed  against  one  who  refuses  to  depart,  266,  267. 

when  private  person  may  lawfully  artest  another,  267,  268,  269,  270. 

causing  illegal  arrest,  271  et  seq. 

when  the  consequence  of  orders  given,  271,  272. 

when  warrant  has  been  issued  upon  insufficient  affidavit,  272,  273. 

causing  another  to  be  arrested  on  void  process,  274,  275. 

party  making  complaint  not  liable,  275,  276,  277. 

rule  in  relation  to  process,  277,  278. 

party  not  liable  for  irregular  execution  of  process,  278,  279. 

coercion  of  wife  but  a  legal  presumption,  279. 

causing  arrest  for  felony  without  process,  280,  281. 

giving  in  custody  where  no  offense  has  been  committed,  281,  282. 

telling  policeman  to  tq,ke  charge  of  another,  282,  283. 

what  must  be  proved  to  excuse  giving  another  in  custody,  284,  285. 

clerk  or  servant  has  no  authority  to  detain  and  search  another,  285. 

attorney  and  client  both  liable  to,  286. 

malicious  arrest  by  judgment  creditor,  286,  287. 

arrest  and  detention  under  military  order,  288,  289,  290. 

right  of  officer  to  detain  person  on  suspicion  of  felony,  290,  291. 

arrest  by  officer  of  innocent  party  without  warrant,  292. 

arrest  by  officer  for  assault  committed  in  his  jDresence,  292,  293. 

duty  of  officer  in  making  arrest  without  warrant,  293,  294. 

officer  cannot  lawfully  detain  where  the  arrest  was  wrongful,  294,  295, 

296. 
will  lie  for  arrest  on  Sunday,  295,  note. 
arrest  by  officer  in  case  of  escape,  296. 
requisites  of  warrant  of  arrest,  297  et  seq. 

duty  of  officer  to  communicate  substance  of  warrant,  301,  302. 
liability  of  officer  in  execution  of  process,  302  eb  seq. 
warrant  to  justify  officer,  need  not  be  on  affidavit,  304,  note. 


670  INDEX. 

FALSE  IMPRISONMENT— rtf«?i«we(Z. 

departure  of  officer  from  order  of  arrest,  304,  note. 

judge  issuing  haheas  corpus  without  jurisdiction,  304,  note. 

arrest  by  officer  after  party's  discharge  as  an  insolvent,  307,  308. 

arrest  of  jirivileged  person,  308,  309. 

arrest  of  wrong  person,  309. 

arrest  by  officer  receiving  notice  from  attorney  forbidding,  310. 

duty  and  liability  of  party  aiding  officer,  310,  311,  312. 

what  constitutes  an  arrest,  312,  313,  314. 

detention  of  party  arrested  by  officer,  314  et  seq. 

officer's  retura,  317,  318,  319. 

responsibility  of  magistrates,  320  et  seq. 

waiver  of  right  of  action,  326,  327. 

nature  of  the  action,  328,  329. 

difference  between,  and  malicious  prosecution,  328,  note. 

declaration,  329,  330. 

plea  justifying  arrest  without  vrarrant  on  suspicion,  330,  331,  332. 

plea  justifying  arrest  without  warrant  for  affray,  332,  333. 

plea  justifying  arrest  under  process,  334,  335,  336. 

replication  to  plea  alleging  breach  of  the  peace,  337. 

replication  to  plea  justifying  under  process,  337  et  seq. 

facts  and  circumstances  must  be  proved,  341. 

magistrate's  signature  to  ^vaxrant  prima  /flc/e  evidence  against  him,  341. 

actual  violence  need  not  be  proved,  342. 

proof  of  animus  of  defendant  proper,  343. 

wben  burden  of  justifying  on  defendant,  344. 

sufficient  for  officer  to  prove  process,  344,  345. 

proof  of  process  not  proper  in  justification  under  execution,  345,  346. 

right  of  way  as  showing  character  of  act,  341,  note. 

evidence  of  verdict  in  favor  of  one  of  several,  not  proper,  344,  note. 

acts  and  declarations  of  third  person,  346,  note. 

admissions  of  one  of  two  defendants,  346,  note. 

proof  of  language  of  magistrate,  346,  note. 

evidence  where  several  are  charged,  346. 

proof  of  probable  cause  in  mitigation,  346,  347,  348. 

mitigating  evidence  not  confined  to  time  of  wrong,  349,  350. 

bad  character  of  plaintiff  cannot  be  proved,  350,  note. 

exemplary  damages,  350,  351,  352. 

damages  where  there  is  no  malice,  351. 

excessive  damages  where  there  was  strong  ground  of  suspicion,  351,  note, 

plaintiff  entitled  to  what  he  has  been  compelled  to  pay,  352,  353. 

where  a  sum  has  been  accepted  in  satisfaction,  353,  354. 

remote  damages  not  recoverable,  353,  note. 

damages  where  the  action  is  joint,  354. 

damages  must  be  excessive  to  be  ground  for  reversal,  354,  note. 
FATHER.     See  Parkxt  a>!d  Child. 
FEES, 

vmtil  tendered,  officer  need  not  receive  amount  of  execution,  468,  note. 


INDEX.  671 

FELONY, 

commission  of,  does  not  take  away  civil  remedy,  33,  37. 
prevention  of,  excuses  homicide,  130,  143. 

persons  present  at  commission  of,  bound  to  apprehend  offender,  267, 
arrest  for,  by  private  jierson  upon  suspicion,  269. 
liability  of  party  who  causes  arrest  for,  without  process,  280,  281. 
right  of  officer  to  detain  on  suspicion  of,  290,  291. 
how  tried  under  plea  of  justification,  347,  note. 
FEME  COVERT.     See  Husband  and  Wife. 
FENCE, 

passes  to  grantee  of  real  estate,  375,  note. 
FIRM.     See  Partnership. 
FISHING  NET, 

action  for  injuring,  34. 
FIXTURES, 

old  rule  of  law  as  to,  869,  370. 

what  now  made  to  depend  upon,  370,  371,  372. 

annexation  to  the  freehold  not  a  criterion^  371,  372,  note. 

civil  law  and  French  law,  372,  -note. 

machinery  of  a  mill,  372,  373,  note. 

as  between  landlord  and  tenant,  373. 

trees  in  a  nursery,  373,  note. 

wine  plants  upon  a  farm,  373,  374,  note. 

rule  as  to  right  of  tenant  to  remove,  374,  note. 

as  between  heir  and  executor,  mortgagee  and  mortgagor,  and  grantee 

and  grantor,  374,  375. 
what  deemed,  in  Connecticut,  374,  375,  note. 
right  of  grantee  of  farm  to  manure,  375,  376. 
growing  crop,  375,  note. 
fences  and  fence  materials,  375,  note. 
rule  as  to  manure  on  fiirm  occupied  by  tenant,  377. 
when  a  building  w'ill  be  deemed  personal  properly,  377,  378,  379. 
right  of  mortgagee  of  land  to  building  erected  bv  another  thereon,  379,. 
380. 
FORCIBLE  ENTRY, 

into  house  or  grounds  may  be  resisted,  140. 
FORCIBLE  REilOVAL, 

of  trespasser  from  laud,  149,  150. 
when  and  how  right  of,  may  be  exercised,  151,  152. 
not  lawful  to  invite  another  to  enter  for  the  purpose  of,  153. 
when.it  may  be  resisted,  153,  154. 
from  religious  meeting,  158,  159. 
of  undertaker  from  church,  IGO,  note. 
from  jiublic  conveyance,  163  et  seq. 
when  party  may  resist  expulsion  from  car,  170. 
of  pupil  from  school,  182,  183. 
FORMER  RECOVERY, 

evidence  under  notice  of,  84,  85,  note. 
must  be  specially  pleaded,  85. 


672  INDEX. 

FOmiER  BECOYERY— continued. 

when  conclusive,  86,  97-99. 

under  submission  of  claim  to  arbitration,  86. 

when  a  defense,  although  between  other  parties,  98,  99. 

is  only  prima  facie  evidence,  99. 

where  the  damages  on  one  of  several  counts  are  not  assessed,  99,  note. 

against  one  of  several  in  assault  and  battery,  will  bar  action  against  the 
rest,  263,  note. 
FRAUD, 

goods  obtained  by,  may  be  retaken,  401. 

action  where  possession  is  obtained  by,  5Q1  et  seq. 

right  of  owner  of  goods  in  case  of  fraudulent  sale,  570. 

what  deemed  in  sale,  as  to  creditors,  571  et  seq. 

question  of,  for  jury,  581,  582,  620. 

sale  may  be  void  as  to  remedv,  and  valid  as  to  possession  of  vendee,  683, 
584.' 

tendency  of  proof  of  previous  fraudulent  sale,  621. 

in  sale,  as  against  attaching  creditor,  626,  note. 
TRENCH  LAW, 

relative  to  fixtures,  372,  note. 
PRONTIER, 

meaning  of  term,  441,  442,  note. 

OENERAL  ISSUE, 

how  far  it  operates  as  a  denial,  605. 
act  done  through  legal  process  cannot  be  shown  by,  605. 
justification  of  wrongful  distress  under,  606. 

discretionary  with  court  to  allow  its  withdrawal,  335,  note.     See  Plea. 
GOODS, 

taken  to  improve,  without  authority,  cannot  be  detained,  358. 
delivered  to  be  manufactured,  continue  property  of  owner,  358. 
rule  of  the  civil  law,  where  they  are  changed  into  a  difierent  species,  359. 
common-law  rule  as  to  property  in  altered  goods,  360,  361,  362.  j 
'  rule  in  New  York  and  other  States,  as  to  title  to  altered  goods,  862  and 

note. 
property  in,  by  accession,  362. 
efiiect  of  compounding,  363,  364. 

rule  of  common  law  when  they  are  intermingled  wilfully,  364,  365. 
civil-law  rule  in  case  of  wilful  intermixture,  364. 
intermingling  of,  through  accident  or  negligence,  365. 
sale  of,  while  mingled  with  those  of  another,  365,  366. 
when  owner  estopped  from  asserting  his  title,  366,  367. 
when  sale  of,  by  one  liaving  the  mere  possession,  will  transfer  the  title, 

367. 
when  property  in,  vests  in  trespasser,  368. 
made  chattels  by  agreement,  368,  369. 
vested  in  defendant  by  payment  of  judgment,  368,  note. 
remedy  for  the  wrongful  conversion  of,  into  real  estate,  369,  note. 
general  rule  as  to  fixtures,  369  et  seq. 
when  a  building  will  be  deemed  personal  property,  377,  378,  379. 


INDEX.  673 

GOODS — continued. 

interference  with  for  an  instant  is  trespass,  381. 

rio-ht  to  wood  and  timber  floating  in  water  over  laud,  381,  note. 

to  constitute  a  wrongful  taking,  need  not  have  been  a  forcible  dispos- 
session, 382,  383. 

trespass  to,  defined  in  North  Carolina,  882,  note. 

trespasser  acquires  no  title  to,  382,  note. 

when  lawfully  acquired  refusal  to  give  up  is  not  trespass,  382,  note. 

trespass  to,  may  be  committed  without  wrongful  intention,  384. 

to  maintain  action,  taking  must  have  been  without  permission,  384,  385. 

remedy  against  second  taker,  38."),  380. 

bailee  of,  excused  when  taken  from  his  possession,  386. 

taken  by  servant  by  mistake,  387. 

interfering  with,  after  revocation  of  license,  388. 

not  a  defense  that  they  were  taken  with  approval  of  wife,  388,  note. 

creditor  obtaining  goods  unlawfully,  388,  389. 

directing  illegal  seizure  or  sale  of,  390  et  seq. 

when  party  jointly  liable  with  officer  in  taking,  395,  396. 

when  act  of  agent  in  seizing  deemed  the  act  of  his  principal,  396,  397, 398. 

mere  purchaser  at  sheriflf's  sale  not  liable,  399. 

causing  void  attachment  to  be  sued  out,  399,  400. 

causing  sale  by  indemifying  officer,  400,  401. 

right  of  owner  to  retake,  401  et  seq. 

cannot  be  forcibly  taken  from  officer  by  joint  owner,  402,  7iote. 

may  be  retaken  by  seller  upon  forfeiture,  403. 

right  where  another  has  them  for  a  specified  time,  404,  405. 

infant  may  retake  upon  rescinding  sale,  405. 

when  sold  upon  credit,  cannot  be  retaken,  405. 

subsequent  tender  will  not  excuse  taking,  406. 

return  of,  if  accepted  by  owner,  will  mitigate  damages,  406. 

wrongful  taking,  how  affected  by  application  to  debt  of  owner,  406,  407. 

wrongful  taking  not  purged  by  subsequent  sale,  407,  408. 

proceedings  stayed  upon  restoration  of,  408,  note. 

when  in  process  of  manufacture,  need  not  be  taken  by  officer,  409,  410. 

in  actual  use  of  debtor  cannot  be  taken,  410,  411. 

tools  exempt  from  seizure  by  ancient  law,  411. 

rolling  stock  of  railroad  may  be  attached,  413,  414, 

what  included  in  necessaries,  415,  410. 

debtor  may  waive  or  insist  on  exemption,  416,  417. 

what  essential  to  constitute  attachment,  417,  418,  419. 

officer  in  attaching,  not  required  to  secure  against  depredators,  420. 

what  necessary  to  constitute  a  levy,  420,  421. 

constructive  levy  where  second  execution  comes  to  officer's  hands,  421. 

levy  upon  joint  effects,  432. 

when  levy  extends  constructively  to   suljsequently  acquired  goods,  422, 
423. 

how  bound  by  levy  at  common  law,  423,  note. 

leaving  with  debtor  not  an  abandonment  of  levy,  424. 

right  to,  as  between  attaching  creditor  and  foreign  mortgagee,  426,  427, 
428. 
Vol.  I.— 43 


674  INDEX. 

GOODS— continued. 

may  be  taken  by  officer  from  owner  after  delivery  to  him  by  receiptor, 
443,  note. 

of  third  person  cannot  lawfully  be  taken  by  officer,  447,  448. 

officer  excused  where  goods  taken  are  in  custody  of  judgment  debtor, 
449,  450. 

of  wife  cannot  be  taken  for  husband's  debt,  451  et  seq. 

liability  of  officer  where  goods  are  intermingled,  455  et  seq. 

of  tenants  in  common,  attachment  and  sale  of,  458,  459,  460. 

of  partnership,  attachment  and  sale  of,  460,  461. 

mortgaged,  sale  of  by  officer,  461,  462. 

officer  liable  for  wrongful  levy  without  removal,  462,  463. 

when  attached,  cannot  lawfully  be  kept  in  another's  building,  464. 

liability  of  officer  for  improper  removal,  464,  465. 

possessor  of,  may  maintain  trespass,  507. 

possession    of,  not  sufficient  to  maintain  action  when  right  is  in  thii'd 
person,  509,  510. 

when  held  under  attachment,  may  be  again  attached,  510. 

averment  of  property  in,  maintained  by  proof  of  possession  with  inter- 
est, 511,  512. 

general  property  in,  sufficient  to  maintain  action,  512. 

parting  with,  will  not  defeat  action  when  possession  can  be  at  any  time 
resumed,  518  et  seq. 

eflFect  of  exchange  of,  when  deposited  as  security  for  a  loan,  523,  524. 

purchaser  may  maintain  action  against  seller  without  delivery,  525. 

right  of  officer  to  maintain  action  for,  528,  529,  530. 

when  officer,  in  action  by  him  for  takinir,  required  to  prove  judgment, 
539. 

qualified  property  in,  subject  to  attachment,  549,  note. 

special  property  in,  forTeited  by  putting  to  improper  use,  550,  note. 

when  taken  from  bailee  owner  cannot  maintain  action,  550,  551. 

effect  of  return  of,  when  sold  or  pledged,  576,  577. 

possession  must  be  j^sroved,  614,  G15. 

proof  of  the  taking,  615,  616. 

evidence  as  to  value,  017. 

proof  of  circumstances  of  wrongful  seizure,  617,  618. 

evidence  of  intention  in  action  for  taking,  618,  619,  620. 

presumptions,  620. 

justification  of  wrongful  taking,  624  ct  seq. 

owner,  by  attaching,  not  prevented  from  showing  that  thev  are  his,  622, 
623.' 

evidence  in  mitigation  of  damages  for  taking,  632.  633,  634. 

damiges  in  general,  633  et  seq. 
GOVEENMENTS, 

preventive  force  exercised  by,  11,  note. 
GRAND  JURY, 

witness  refusing  to  be  sworn  may  be  given  in  custody,  293,  note. 

have  authority  to  arrest  in  Connecticut,  302,  note. 

not  liable  for  finding  indictment,  8. 


INDEX.  675 

GRAND   LARCENY, 

right  and  duty  of  officer  to  take  property  in  case  of,  484. 
GUARDIAN, 

infant  wlien  sued  must  liave,  42. 


HABEAS   CORPUS, 

issued  without  jurisdiction,  is  not  false  imprisonment,  304,  note. 
HIGHWAY, 

whole  space  need  not  be  graded,  4,  5. 

injury  of  by  cutting  away  dam,  23. 

liability  for  playing  ball  upon,  23,  note. 

person  unlawfully  obstructing  may  be  removed,  135,  136. 

railway  depot  is  not,  177. 
HOMICIDE, 

lawful  in  self-defense,  138,  130,  143. 
HOUSE.     See  Dwelling-house. 
HOUSEHOLD   FURNITURE, 

what  included  in  necessary,  415,  416. 
HUSBAND  AND   WIFE, 

assignment  by  wife  of  claim  for  tort,  37,  note. 

action  for  wrong  committed  by  wife,  38,  39,  40. 

liability  of  husband  at  common  law  for  torts  of  wife,  38. 

when  coercion  of  husband  presumed,  38,  39. 

what  essential  to  exempt  wife  from  liability,  39. 

liability  of  wife  to  be  sued  after  death  of  husband,  39,  40. 

statutes  of  New  York  relative  to  liability  of  husband  for  tort  of  wife,  40, 
note. 

right  of  self-defense,  133. 

action  for  assault  and  battery  will  not  lie  by  wife  against  husband,  189. 

statutes  of  New  York  relative  to  actions  between,  189,  190,  note. 

who  entitled  to  damages  for  personal  injury  of  wife,  330,  201,  202. 

husband  cannot  recover  for  mental  suffeiing  of  wife,  251,  note. 

coercion  of  wife  but  a  legal  presumption,  279, 

no  defense  that  goods  were  taken  with  approval  of  wife,  388,  note. 

liability  of  officer  for  seizing  wife's  goods,  451,  452. 

statute  of  Vermont  exempting  property  of  wife,  451,  452,  note. 

husband's  right  to  wife's  goods  at  common  law,  452. 

wife's  goods  cannot  be  taken  for  husband's  debts  in  New  York,  453,  454, 

when  property  of  wife  vests  in  husband,  she  cannot  be  joined  in  action, 
510,  note. 

damages  in  action  by  wife  for  taking  her  property,  639,  v/>te. 

IGNORANCE, 

of  boundary  excused  in  North  Carolina,  8,  note. 
INDEMNITY, 

of  innocent  wrong-doer,  28,  29,  30,  67,  note. 

distinction  between  promises  of,  23,  29. 

conflict  of  authority  as  to  promise  of,  28,  2^^note. 


G76  INDEX. 

INDICTMENT, 

when  trespass  the  subject  of,  33,  note. 

proof  of,  for  same  assault,  224,  233. 
INFANT, 

may  retake  goods  upon  rescinding  sale,  405. 

cannot  maintain  action  for  goods  which  he  surrendered,  547,  note. 
See  Parent  and  Child. 
INN, 

keeper  of,  may  prohibit  persons  from  entering,  154. 

proprietor  bound  to  admit  persons  to  see  guests,  155. 

right  of  landlord  to  eject  persons,  156,  157. 

action  against  keeper  of,  founded  in  tort,  382,  note. 
INSANE  PERSON, 

any  one  may  arrest  and  detain,  269. 
INSOLVENT, 

may  be  arrested  notwithstanding  he  shows  his  discharge,  307,  308. 
INSTRUCTION.     See  Court. 
INTENTION, 

action  will  lie  irrespective  of,  IS  et  seq. 

character  of  act  dependent  upon,  17. 

to  do  illegal  act,  17,  18. 

not  a  ground  of  action,  18,  19,  note. 

felonious,  does  not  take  away  civil  remedy,  36,  37. 

how  pleaded,  82. 

in  action  for  taking  and  carrying  away  goods,  618,  619,  620. 
INTEREST, 

not  allowed  on  judgment,  115,  note. 
INTERNAL  REVENUE, 

collector  of,  not  liable  for  mistaken  seizure,  502, 7iote, 
INTOXICATED  PERSON, 

abuse  of,  by  conductor  of  omnibus,  42. 
INTOXICATING  LIQUOR, 

action  for  taking,  although  held  unlawfully,  596,  597,  598, 

is  not  a  common  nuisance,  598,  note. 
ISSUE, 

what  facts  deemed  to  have  been  in,  97,  98,  note. 

JAILOR, 

wrongful  detention  of  paity,  316,  317. 
JOINT  WRONG-DOERS, 

who  to  be  deemed,  22  et  seq..,  63,64  et  seq. 

where  authority. is  delegated,  24,  25. 

where  a  nuisance  is  allowed,  24,  note. 

action  in  the  case  of,  Gl  et  seq. 

in  hiring  carriage  and  horses,  66,  ?iote. 

where  the  trespass  is  done  for  one's  benefit,  66,  note. 

confession  of  judgment  by  one,  67,  note. 

trespass  cannot  be  maintained  by,  67,  note. 

what  constitutes,  67, 68. 


INDEX.  C77 

JOINT  WnOH^G-DOERS— continued. 

settlement  with  some  of  several,  71,  72, 

nature  of  injury  by,  71,  72,  note. 

release  of  one,  72,  7iote,  73, 74. 

plea  by,  82,  83. 

justification  by,  when  ill,  83,  note. 

evidence  in  relation  to,  93,  94. 

when  admitted  to  testify,  94,  95,  96. 

acquittal  of  one  of  several,  96. 

effect  of  satisfaction  by  one,  99. 

damages  in  action  against,  105  et  seq. 

only  liable  for  acts  jointly  committed,  108. 

costs  where  separate  actions  are  brought,  109. 

verdict  against,  110,  111. 

aiding  or  encouraging  battei'y,  193,  194. 

where  one  is  not  served,  202,  203. 

improper  joinder  of,  not  ground  of  exception  after  verdict,  203,  tiote. 

recovery  against  one  in  assault  and  battery  will  bar  action  against  the 
rest,  263,  note. 

all  liable  who  advise  or  act  with  magistrate,  321,  note,  d2Q,note. 

joint  liability  with  officer  in  taking  goods,  395,  396. 

forcibly  taking  goods  from  officer  by  joint  owner,  402,  note. 
JUDGE, 

general  rule  as  to  liability  of,  8. 

may  direct  entry  of  verdict  during  trial,  when,  112. 

may  ask  jury  ground  of  verdict,  112. 

issuing  habeas  corpus  without  jurisdiction,  304,  note. 
JUDGMENT, 

how  pleaded,  56. 

confession  of,  by  one  of  two  joint  defendants,  67,  note. 

when  remedy  upon,  lost,  74,  75. 

when  it  will  constitute  a  defense,  97. 

explanation  of  rule  as  to  effect  of,  97,  98,  note. 

when  a  bar,  although  rendered  between  other  parties,  98,  99. 

effect  of  satisfaction  of,  by  one  of  several,  99. 

where  damages  are  not  assessed  on  all  the  counts,  99,  7ioie. 

election  of  judgments,  107. 

by  default  against  several,  108. 

can  only  be  rendered  for  trespasses  charged,  114. 

in  case  of  several  issues,  114. 

when  it  must  be  joint,  114. 

where  defendant  dies  after  verdict,  115. 

may  be  reversed  as  to  one  and  affirmed  as  to  other,  116. 

against  party  not  summoned,  115,  note. 

interest  on,  not  allowed,  115,  note. 

•determining  question  of  possession,  227. 

goods  vested  in  defendant  by  payment  of,  368,  note. 

plaintiff  in  attachment  suit  protected  by,  389,  390,  note. 

effect  of  reversal  of,  in  attachment  suit,  391,  note. 


678  INDEX. 

JTTDGM'E'NT—contirmed. 

■wlicn  officer  required  to  plead  and  prove,  439. 

in  lavor  of  sheriff,  is  evidence  for  sheriff,  491, 7wte. 

when  officer  required  to  prove,  530. 

in  trover,  conflict  of  autbority  as  to  eflFect  of,  GOO,  601. 

is  best  evidence  of  relation  of  debtor  and  creditor,  626,  note. 

in  attachment  suit,  cannot  be  set  off  in  trespass,  637,  note. 

■when  erroneously  entered,  will  be  amended,  650,  note. 
JUDGMENT  CREDITOR, 

maliciously  causing  arrest,  286,  287. 
JURISDICTION, 

liability  of  courts  and  ofiicers  proceeding  without,  55  et  seq. 

distinction  between  courts  of  general  and  limited,  56. 

when  want  of,  may  be  shown  collaterally,  115,  321,  note. 

magistrate  may  justify  without  showing,  321,  note. 

liability  of  magistrate  acting  without,  323,  324. 

want  of,  to  render  magistrate  liable,  must  appear  on  face  of  proceedings. 
320,  note. 
JURY, 

not  liable  for  wrong  verdict,  8. 

are  to  decide  as  to  sufiiciency  of  evidence,  101. 

may  be  asked  ground  of  verdict,  112. 

may  change  their  mind  as  to  verdict,  112. 

polling  of,  112,  11.3. 

question  of  excess  of  authority  to  be  determined  by,  143,  Tiote. 

fact  of  possession  question  for,  576,  note. 

to  determine  question  of  fraud  in  conveyance  or  attachment,  581,  582. 

to  determine  as  to  character  of  sale,  620. 
JUSTICE  OF  THE  PEACE, 

confined  to  authority  given  by  statute,  55,  321,  322. 

judgment  of,  how  pleaded,  56. 

liability  for  illegal  acts,  57,  58. 

cannot  act  in  New  York,  when  an  innkeeper,  58,  note. 

duty  when  penalties  are  recovered  before,  58,  note. 

powers  of,  superseded  by  certiorari,  58,  note. 

liability  of,  for  the  illegal  issuing  of  final  process,  58,  note. 

liability  of,  for  issuing  process  without  complaint,  58,  59,  note. 

ground  of  liability  of,  59. 

not  liable  for  error  of  judgment,  59,  60. 
JUSTIFICATION, 

rule  of  common  law  as  to  pleading,  83,  84. 

jjrinciple,  where  several  join  in,  83,  note. 

evidence  in  case  of,  where  the  plaintifi'new  assigns,  90. 

of  a  battery  in  defense  of  property,  135  et  seq. 

of  wrongful  distress,  606. 

when  officer  must  plead  specially,  608. 

in  replevin,  must  allege  the  giving  of  a  bond,  610. 

for  taking  personal  property,  evidence  in,  624  et  seq. 

trader  process,  proof  of,  625,  626. 

evidence  in,  must  conform  to  plea,  631. 


INDEX.  679 

LAND, 

forcible  removal  of  trespasser  from,  149,  150. 

assault  of  person  after  his  title  to  occupy  has  ended,  150,  151. 

when  and  how  right  of  removal  from,  may  be  exercised,  151,  152. 

not  lawful  to  invite  another  on,  in  order  to  eject,  153. 

when  removed  from,  naay  be  resisted,  153,  154. 
LANDLORD, 

may  prohibit  persons  from  entering  inn,  154. 

bound  to  admit  persons  who  have  business  with  guests,  155. 

right  to  eject  persons,  150,  157. 
LANDLORD  AND  TENANT, 

tenant  may  defend  possession,  135. 

forcible  ejection  of  tenant  unlawful,  143. 

rule  as  to  fixtures,  373. 

right  of  tenant  to  remove  fixtures,  374,  note. 

tenant  of  farm  has  no  right  to  remove  manure,  377. 

when  deemed  in  joint  possession  of  personalty,  515,  note. 
LANGUAaE.     See  Words. 
LAW, 

authority  in,  a  justification,  8. 

rights  distinguished  by,  11. 

reasonable  time,  a  question  of,  483,  note. 

of  another  State,  must  be  proved,  92,  93. 
LESSOR  AND  LESSEE.     See  Landlord  and  Tenant. 
LIBEL, 

for  assault  and  battery  of  child,  187,  note. 
LICENSE, 

assignee  of,  no  right  to  enter  premises  when  forbidden,  135,  note. 

to  attend  place  of  j)ublic  amusement,  may  be  revoked,  ICO,  161. 

to  ren\ain  upon  premises  of  railroad  company,  179. 

interfering  with  goods  after  revocation  of,  388. 
LIEN, 

of  factor,  action  in  case  of  loss  of,  560,  561. 

right  of,  at  common  law,  561,  note. 

to  whom  now  extended,  561,  note, 

forfeited  by  failure  to  fulfil  contract,  561,  note. 
LIMITATIONS.     Statute  of, 

where  property  is  tortiously  severed  from  freehold,  374,  note. 
LIQUOR.     See  Intoxicating  Liquor. 
LOAN, 

exchange  of  goods  when  deposited  as  security  for,  523,  524. 
LUNATIC.     See  Insane  Person. 

MACHINERY, 

when  deemed  fixtures,  372,  373,  note. 
MAGISTRATE, 

liable  if  he  do  not  take  the  official  oath,  320. 

sole  question  in  action  against  for  false  imprisonment,  320. 

want  of  jurisdiction  of,  may  be  shown  in  collateral  action,  321,  note. 


680  INDEX. 

MA-GISTBA-TE— continued. 

piay  justify  without  sliowing  jurisdiction,  321,  note. 

all  liable  who  advise  or  act  with  him,  331,  note. 

acts  of,  must  be  done  within  authorized  locality,  323. 

cannot  detain  person  before  a  charge  is  made,  333,  323. 

liable  for  acting  without  jurisdiction,  333,  324. 

liable  for  wrong  ministerial  acts,  334,  325. 

liable  for  consequences  of  commitment,  326. 

want  of  jurisdiction  must  apjiear  on  the  face  of  the  proceedings,  336,  note. 

signature  to  wsiTrant  2}rima  facie  evidence  against  him,  341. 

proof  of  what  was  said  before,  346,  note. 

party  complaining  to,  not  liable  for  false  imprisonment,  275,  276,  277. 
MAINTENANCE, 

meaning  of,  38,  note. 
MALICE, 

not  imputed  to  lawful  transaction,  45. 

proof  of,  in  assault  and  battery,  228,  229,  230. 

words  characterizing  conduct  as  to,  229. 

in  law  and  actual,  distinction,  253. 
MANURE, 

right  of  grantee  of  farm  to,  375,  376. 

tenant  has  no  right  to  remove,  377. 

tenant  entitled  to,  in  North  Carolina,  377,  note 
MARKET  OVERT, 

eflfect  of  sale  in,  at  common  law,  568,  note. 
MASTER  AND  SERVANT, 

promise  of  indemnity  by  master,  29,  30.  ' 

liability  of  master  for  wrongs  of  servant,  42  et  seq. 

principle  on  which  master  is  liable,  42,  43,  note. 

distinction  between  trespass  of  servant  and  liability  of  master  for  neg- 
ligence, 43,  note. 

liability  of  railroad  company  for  wilful  conduct  of  employees,  43,  44, 
note,  162,  163,  165,  166. 

when  master  not  liable,  44,  45,  48,  49,  163,  164,  587,  note. 

implied  authority  of  servant,  how  limited,  44,  note. 

when  relation  of,  must  be  proved,  46. 

sheriff  and  his  deputy  sustain  the  relation  of,  52  note. 

right  of  self-defense,  133. 

chastisement  of  servant  by  master,  186,  187. 

corporal  punishment  by  master  of  vessel,  187. 

where  servant  has  taken  goods  by  mistake,  387.- 

action  when  goods  are  taken  from  servant,  530,  531. 

action  by  master  of  vessel  for  injury  of  property,  554. 
MAYOR, 

liable  for  the  wrongful  taking  of  property  for  tax,  57. 
MEETING.     See  Religious  Meeting. 
MILITARY  OFFICER, 

when  amenable  to  civil  tribunal,  288,  389,  309,  note. 

acts  of,  to  be  viewed  with  indulgence,  389,  390. 

rights  and  responsibilities  of,  how  governed,  290. 


INDEX.  681 

MINORS,     See  Parent  and  Child. 
MISTAKE, 

in  assessment  of  damages,  how  cured,  106,  107. 
assessor  of  taxes  not  liable  for,  498,  note. 
MONEY, 

payment  into  court,  83,  note. 
MORTGAGOR  AND  MORTGAGEE, 

right  of  foreign  mortgagee  to  goods  as  against  attaching  creditor  426, 

437,  428. 
sale  by  officer  of  mortgaged  goods,  461,  463. 
duty  of  officer  to  inquire  as  to  ownershiij  of  goods,  483,  note. 
demand  upon  officer  by  mortgagee,  must  be  within  a  reasonable  time, 

483,  483,  note. 
mortgagee  of  goods  may  maintain  action  for  their  removal,  534,  535. 
no  demand  required  as  between  mortgagee  and  wrong-doer,  535,  536. 
what  damages  mortgagee  entitled  to,  in  action  against  officer,  535,  536, 

note. 

action  where  goods  are  left  with  mortgagor  by  agreement,  537. 

right  of  mortgagee  to  take  possession  of  property  after  it  has  been  trans- 
ferred by  mortgagor,  538,  7iote. 

mortgagee  may  maintain  action  although  the  mortgage  be  afterwards 
adjudged  void,  538,  539. 

recovery  by  second  mortgagee,  539. 

right  of  person  to  be  treated  as  assignee  of  mortgage,  539,  540. 

action  by  mortgagee  against  officer  and  execution  creditor,  539,  note, 

mortgage  of  future  acquired  chattels,  541,  543. 

waiver  by  mortgagee,  542,  543,  544. 

when  right  of  mortgagee  suspended,  544. 

interest  of  mortgagor  subject  to  levy  and  sale,  544. 

property  left  with  mortgagor  liable  to  attachment,  544,  545,  note. 

action  by  mortgagee  against  officer,  640,  641. 

right  of  property  in  mortgagor  except  as  to  mortgagee,  545,  546. 

effect  of  sale  and  mortgage  to  secure  purchase  money,  546. 

damages  where  goods  are  seized  by  mortgagee  before  forfeiture,  641. 
MOTIVE.     See  Intention. 
MUSIC  MASTER, 

cannot  lawfully  beat  chorister,  183,  note. 

NECESSARIES, 

what  included  in,  415,  416. 
NECESSITY, 

injury  caused  by,  excused,  3,  9,  note. 

must  be  proved  to  have  existed  at  time  of  injury,  3. 
NEGLIGENCE, 

trespass  may  be  maintained  in  case  of,  34,  35. 
NEW  ASSIGNMENT, 

nature  and  use  of,  88. 

has  been  superseded  in  New  York,  89. 

when  plaintifl"  restricted  to,  89. 

when  double,  89. 


682  INDEX. 

NEW  ASSIGNMENT— fo«ii/m«Z. 

when  required  iu  assault  and  battery,  216,  note,  217,  218,  219. 

necessary  in  case  of  re-arrest,  338. 

when  required  as  to  acts  of  officer,  613. 

in  trespass  to  personal  property,  613,  note. 

inartificial  averment  in,  cured  by  verdict,  614,  note. 
NEW  TRIAL, 

for  admission  of  improper  evidence,  116. 

where  the  verdict  is  contrary  to  evidence,  117. 

on  account  of  excessive  damages,  117,  118. 

for  smallness  of  damages,  119. 
NONSUIT, 

of  one  of  several,  eifect  of,  94,  note. 
NOTICE, 

accompanying  general  issue,  effect  of  evidence  under,  84,  note. 

of  former  recovery  under  plea  of  not  guilty,  84,  85,  note. 

of  time  and  place  of  sale  must  be  given  by  officer,  465,  466,  467. 

insufficient,  not  cured  by  adjournment,  468,  note. 

of  sale,  duty  of  buyer  to  give,  577,  578. 
NUISANCE, 

liability  for,  when  created  by  anothei,  24,  note. 

right  to  abate  at  common  law,  598,  note. 

spirituous  liquors  are  not,  598,  note. 

OFFICER, 

party  liable  for  acts  of,  though  officer  excused,  25. 
when  authority  of,  a  justification  of  others,  25. 
party  not  bound  to  obey  command  of,  to  do  unlawful  act,  25. 
omission  of,  to  return  process,  will  not  make  party  liable,  26. 
when  person  aiding,  not  liable  for  the  acts  of,  26,  27. 
right  to  resist  unlawful  seizure  of  goods  by,  138,  139,  140,  141. 
may  be  resisted,  if  he  do  not  show  his  warrant,  192, 
must  not  use  force  when  prisoner  submits,  192. 

party  not  responsible  for  irregular  execution  of  process  by,  278,  279. 
when  giving  in  charge  of,  constitutes  false  imprisonment,  281,  282,  283. 
military,  when  amenable  to  civil  tribunal,  288,  289,  290. 
right  to  detain  person  on  suspicion  of  felony,  290,  291. 
arresting  innocent  party  without  warrant,  292. 
arrest  by,  for  assault  committed  in  his  presence,  292,  293. 
duty  where  he  makes  arrest  without  warrant,  293,  294. 
cannot  lawfully  detain  where  the  arrest  was  wrongful,  294,  295,  296. 
arrest  by,  in  case  of  escape,  296. 
duty  to  communicate  substance  of  warrant,  301,  302. 
not  affected  by  irregularity  in  proceedings,  302  et  seq. 
warrant  to  justify,  need  not  be  founded  on  affidavit,  304,  7iote. 
becomes  a  trespasser  by  departing  from  order  of  arrest,  304,  315,  note. 
may  arrest  notwithstanding  he  is  shown  the  partv's  discharge  as   an  in- 
solvent, 307,  308. 
may  arrest  privileged  jjerson,  308. 


INDEX.  G83 

OFFICER— conti7iued. 

arresting  wrong  person,  309. 

making  arrest  after  notice  from  attorney  not  to  do  so,  310. 

duty  of  i^arty  to  aid,  310,  311. 

when  party  aiding  -will  be  liable,  311,  313. 

what  constitutes  an  arrest  by,  312,  313,  314. 

detention  of  party  arrested,  314,  315,  316,  317. 

must  set  forth  his  acts  in  his  return,  317,  318. 

return  of,  how  far  evidence  in  his  favor,  319. 

justifying  under  process,  must  set  forth  return,  336. 

directing  illegal  seizure  or  sale  of  goods  by,  390  et  seq. 

not  liable  for  improperly  receiving  money  without  notice,  394,  note. 

when  party  jointly  liable  with,  in  taking  goods,  395,  396. 

causing  wrongful  sale  by  executing  indemnity  to,  400,  401. 

assault  and  battery  by,  in  retaking  goods,  402. 

forcible  taking  of  goods  from,  by  joint  owner,  402,  note. 

need  not  take  goods  in  process  of  manufactiu'e,  109,  410. 

what  required  to  do  to  make  an  attachment,  417,  418,  419. 

need  not  secure  goods  attached  against  depredators,  420. 

what  necessary  to  eflect  a  levy,  420,  421. 

constructive  levy  upon  receiving  a  second  execution,  431. 

levy  upon  joint  effects,  432. 

when  levy  extends  constructively  to  subsequently  acquired  goods,  423, 

433. 
by  leaving  goods  with  debtor  does  not  abandon  levy,  434. 
general  rule  as  to  protection  afforded  by  process,  438,  439. 
distinction  in  England  as  to  justification  under  process,  430,  431. 
duty  and  liability  in  the  execution  of  process  in  New  York,  431,  432. 
bound  to  obey  precept,  433,  434. 

is  hable  if  he  knowingly  executes  void  process,  434,  435,  436. 
liability  of,  in  executing  writ  of  replevin,  436,  437,  438. 
need  not  inquire  into  service  of  original  writ,  438,  439,  440. 
when  required  to  plead  and  prove  a  judgment,  439. 
protected  by  execution  which  is  voidable  only,  439,  440. 
not  bound  to  entertain  evidence  of  settlement  of  claim,  440.  i 

when  a  volunteer,  must  show  legality  of  process,  441,  443. 
must  not  serve  process  after  notice  that  it  has  been  superseded,  442. 
may  take  goods  from  owner  after  delivery  to  him  by  receiptor,  442,  note.. 
personal  property  vested  in  by  execution,  443. 
duty  in  executing  attachment,  443,  444,  445. 
no  excuse  that  property  attached  was  taken  from  his  possession,  443, 

note. 
liable  even  where  he  acts  in  good  faith,  446. 
liability  for  seizing  goods  which  are  exempt,  440,  447,  note. 
cannot  lawfully  take  [)roperty  of  third  person,  447,  448. 
excused  where  goods  taken  are  in  custody  of  judgment  debtor,  449,  450. 
liability  for  seizure  of  property  of  wife,  451,  452. 
liaijility  where  goods  are  intermingled  with  debtors,  455  et  seq. 
attachment  of  chattel  held  in  common,  458. 


684  INDEX. 

OFFICER— continued. 

sale  of  good.3  of  tenants  in  common  under  execution,  459,  460. 

attachment  and  sale  of  partnership  property,  460,  461. 

sale  of  mortgaged  goods,  461,  463. 

will  be  liable  for  wrongful  levy  without  removal,  462,  463. 

has  no  right  to  keep  attached  goods  in  another's  building,  464. 

liable  for  removing  goods  at  improper  time,  464,  465. 

in  seizing  property,  must  show  that  he  has  discharged  fully  his  duty, 

465  et  seq. 
must  give  notice  of  time  and  place  of  sale,  465,  466,  467. 
not  liable  for  improper  postponement  by  request  of  debtor,  467,  468. 
is  liable  for  selling  goods  under  attachment  without  complying  with 

the  statute,  468,  7wte. 
liability  of,  for  using  property  taken  by  him,  468,  469,  470. 
not  obliged  to  receive  amount  of  execution  without  his  fees,  468,  7iote. 
responsibility  in  relation  to  treatment  of  property  attached,  472,473. 
cannot  lawfully  act  as  agent,  473. 
when  liable  for  nonfeasance,  473,  474,  475,  476. 
not  liable  for  mistake  in  return,  475,  Tiote. 
not  liable  for  refusing  to  take  bail,  476,  note. 
sheriff  liable  for  nonfeasance  of  his  deputy,  476,  note. 
when  deemed  a  trespasser  db  initio,  476  et  seq. 
liable  for  leaving  goods  in  charge  of  unsuitable  person,  480,  481. 
liability  of,  for  use  of  goods  by  third  jjerson,  481. 
exercising  lawful  authority,  not  liable  to  third  person,  482. 
duty  to  inquire  as  to  ownership  of  property,  in  case  of  mortgage,  482, 

Jiote. 

demand  upon  by  mortgagee  must  be  within  reasonable  time,  483,  483, 
note. 

may  seize  goods  without  process,  483,  484. 

right  to  take  property  in  grand  larceny,  484. 

special  power  and  duty  of,  487,  488. 

de  facto,  validity  of  acts  of,  488,  489. 

when  he  holds  goods  under  attachment,  not  liable  for  again  attaching 

them,  510. 
right  to  maintain  action  for  goods,  528,  529,  530. 
when  required  to  prove  a  judgment,  530. 

liability  for  removing  goods  under  attachment  against  mortgagor,  537. 
how  to  justify  the  taking  of  goods  from  bailee  of  mortgagee,  539,  note. 
when  in  action  for  taking  goods  to  plead  specially,  608. 
when  acts  of,  should  be  newly  assigned,  613. 
must  prove  service  of  warrant  by  return,  627,  628. 
may  serve  process  in  his  own  behalf,  629,  note. 
when  return  of,  not  evidence  for,  630. 
•OMNIBUS, 

abuse  of  person  by  conductor,  42. 

PARENT  AND  CHILD, 

father  not  liable  for  wilful  act  of  child,  41. 

father  cannot  recover  back  money  paid  for  tort  of  son,  41. 


INDEX.  685 

PARENT  AND  CBILB— continued. 

liability  of  father  when  present  at  commission  of  wrong  hj  child,  41,42. 

minors  may  be  sued  for  trespass,  41,  note. 

infant  when  sued  must  have  guardian,  42. 

right  of  self-defense,  133. 

unlawful  for  child  to  disturb  family,  152,  153,  note. 

action  for  seduction  of  daughter,  180,  181, 182. 

libel  for  assault  of  child  at  sea,  187,  note. 

liability  of  father  for  injury  caused  by  team  in  charge  of  son,  191,  192, 
note. 

minor  entitled  to  earnings  as  against  creditors  of  father,  580,  note. 

infant  liable  for  injuring  personal  property,  587. 

when  plea  of  infancy  a  good  defense,  585,  586,  7iote, 
PARISH, 

can  only  raise  money  for  pui'poses  exjiressed  by  law,  494,  note. 
PARTNERSHIP, 

liability  of  members  of,  54. 

attachment  and  sale  of  property  of,  460,  461. 

settlement  with  one  of  two  partners,  566,  note. 
PARTY, 

non-joinder  of,  how  objected  to,  79. 

remedy  for  misjoinder  of,  under  New  York  Code,  79,  80. 
PAWNBROKER, 

measure  of  damages  where  goods  are  deposited  with,  641. 
PAYMENT, 

of  money  into  court,  83,  note,  649,  note. 

of  judgment,  vests  goods  in  defendant,  368. 
PERSONAL  PROPERTY, 

defense  of,  will  justify  a  battery,  135  et  seq. 

may  be  forcibly  taken  from  wrong-doer,  136,  137,  146  et  seq. 

right  to  resist  unlawful  attachment  of,  138,  139,  140,  141. 

wrongful  removal  of,  may  be  opposed,  141.     Bee  Goods. 
PLACE, 

description  of.  in  declaration,  77. 

of  trial  must  be  where  goods  were  taken,  614,  note. 
PLATFORM.     See  Depot. 
PLEA, 

of  unavoidable  accident,  when  sufficient,  3,  note. 

in  abatement  at  common  law  for  non-joinder  of  party,  79. 

requisites  of  plea  in  bar,  81. 

inconsistent  defenses  may  be  interposed  by,  81. 

of  tender,  in  Vermont,  81 ,  note. 

when  intent  may  be  traversed,  82. 

where  the  action  is  against  several,  82,  83. 

of  justification,  83,  84,  85. 

withdrawal  of  general  issue,  83,  note. 

matters  that  must  be  specially  pleaded,  84,  note. 

authority  how  stated  in,  85. 

general  issue  in  assault  and  battery,  206,  207. 


<)86  INDEX. 

PLEA — con  tinued. 

rule  as  to  special  plea  in  assault  and  battery,  207,  208. 

So?i  assault  demesne.,  209. 

efi'ect  of  answering  assault,  209. 

violliter  manus  imjwsuit,  210,  211. 

where  the  declaration  charges  several  distinct  assaults,  211,  212. 

in  bar  generally,  in  assault  and  battery,  212,  213,  214. 

when  declaration  charges  aggravated  assault  and  battery,  214. 

amendment  of,  in  assault  and  battery,  215. 

justifying  arrest  without  warrant  on  vSiispiciou,  330,  331,  332. 

justifying  arrest  without  warrant  on  account  of  affray,  332,  333. 

justifying  arrest  under  process,  334,  335,  336. 

what  it  may  contain  in  action  for  taking  goods,  603. 

sufficient  if  it  substantially  sets  out  defense,  603,  604. 

how  far  general  issue  operates  as  a  denial,  605. 

requisites  of,  when  the  defendant  justifies  the  taking  of  goods  under 
process,  607,  608. 

when  officer  must  plead  justification  sjjecially,  608. 

need  not  traverse  detention  and  conversion  when  taking  justified,  609, 
610. 

of  justification  in  replevin,  must  allege  the  giving  of  a  bond,  610. 

of  not  possessed,  in  action  for  taking  goods,  609,  note. 

by  collector  under  rate  bill  and  warrant,  610,  611. 

special,  what  acts  admitted  by,  611,  612. 

need  not  set  out  tax  list.  611,  note. 

of  duress,  evidence  under,  630,  631. 

evidence  in  justification  must  conform  to,  631,  note. 
PLEDGE, 

is  a  mere  bailment,  5-53,  note. 

statute  of  New  York,  553,  note. 

owner  of  goods  pledged  cannot  maintain  action,  553. 

effect  of  return  to  owner  of  goods  pledged,  576,  577. 
POLICE.     See  Officeh. 
POSSESSION, 

of  place  of  assault,  proof  of,  224,  225,  226,  227. 

of  child,  fraud  in  obtaining  not  material,  227. 

determined  by  judgment,  227. 

of  goods,  sufficient  to  maintain  trespass,  507. 

not  sufficient  to  maintain  action  when  paramount  right  is  in  thii'd  per- 
son, 509,  510. 

proof  of,  will  maintain  averment  of  property,  511,  512. 

constructive,  cannot  prevail  against  actual,  515,  note. 

when  deemed  joint  as  between  vendor  and  vendee,  or  lessor  and  lessee, 
515,  note. 

of  personal  property,  when  constructive,  516,  517,  518. 

parting  with,  with  right  to  resume  at  any  time,  will  not  defeat  action, 
518  cf  seq. 

constructive  of  vendee,  when  goods  sold  deemed  in,  526,  527. 
in  the  case  of  a  corporation,  531. 
mortgagee  entitled  to,  534. 


INDEX.  687 

POSSESSION— 6-(?w?i?iMe^. 

presumption  of  fraud  from  continued,  574,  575. 

question  of,  for  jury,  570,  note. 

owner  by  parting  witli,  loses  right  of  action,  547,  548,  551,  553,  note. 

must  be  shown  to  be  rightful,  5G9,  570. 

obtained  by  fraud,  action  in  case  of,  567  et  seg. 

pledgee  entitled  to,  553. 

of  goods,  must  be  proved,  614,  615. 
POSTPONEMENT.     See  Adjournme^it. 
PRESIDENT, 

of  railroad  company,  liability  of,  for  acts  of  agent,  179,  180. 
PRESUMPTIONS.     See  Evidence. 
PRINCIPAL  AND  AGENT, 

when  principal  liable  for  wrongful  acts  of  agent,  27,  28,  50,  51. 

promise  of  indemnity  of  agent  when  implied,  28,  29,  note. 

responsibility  of  j^rincipal  for  acts  of  subagents,  47,  48. 

ofBcer  cannot  act  as  agent,  473. 

when  act  of  agent  in  seizing  goods  deemed  act  of  principal,  396,  897, 
398. 

action  where  agent  is  in  possession,  557  et  seq. 

action  where  lien  of  factor  is  lost,  560,  561. 
PRIVILEGED  PERSON, 

may  be  arrested  upon  regular  process,  308. 

may  waive  privilege,  309. 
PRIZE, 

seizure  as,  is  not  trespass,  485,  486. 
PROBABLE  CAUSE, 

of  suspicion,  in  actions  for  false  imprisonment,  346,  347,  348. 
PROCESS, 

its  not  being  returned  will  not  prejudice  person  aiding  officer,  26. 

liability  of  justice  of  the  peace  for,  58,  7iotc. 

omission  to  serve,  in  assault  and  battery,  202,  203. 

void,  causing  another  to  be  arrested  on,  274,  275. 

rule  as  to  false  imprisonment  for  arrest  under,  277,  278. 

party  not  responsible  for  irregular  execution  of,  by  officer,  278,  279. 

liability  of  attorney  and  client  for,  286. 

liability  of  officer  in  execution  of,  302  et  sej. 

plea  justifying  arrest  under,  334,  335,  336. 

replication  to  plea  justifying  under,  337  et  seg. 

sufficient  for  officer  justifying  arrest  to  prove,  344,  345. 

proof  of  service  of,  where  defendant  justifies  under  execution,  345,  846. 

liability  of  party  causing  it  to  be  issued  without  jurisdiction,  391,  392. 

party  not  in  general  liable  for  irregular  execution  of,  392,  393,  394. 

directing  officer  to  continue  to  act  under  it,  394. 

causing  void  attachment  to  be  levied,  899,  400. 

general  rule  as  to  protection  afforded  officer  by,  428,  429. 

distinction  in  England  as  to  justification  of  officer  under,  430,  431. 

duty  and  liability  of  officer  in  the  execution  of,  in  New  York,  431, 482. 

officer  bound  to  obey,  433,  434. 


688  INDEX. 

FHO  CESS— continued. 

when  void  on  its  face,  officer  executing  it  a  trespasser,  434,  435,  436. 

void  and  voidable,  distinction,  435,  note. 

liability  of  officer  in  executing  writ  of  replevin,  43G,  437,  438. 

original,  officer  having  execution,  need  not  inquire  into  service  of,  438, 
439,440. 

Icgalitv  of,  must  be  shown  by  officer  when  he  acts  as  a  volunteer,  441, 
442. 

officer  must  not  serve  after  notice  that  it  has  been  superseded,  442. 

officer  permitted  to  seize  goods  without,  483,  484. 

service  of,  by  person  sj)ecially  appointed,  487. 

act  done  under,  cannot  be  shown  under  general  issue,  605. 

when  to  be  objected  to  by  plea  in  abatement,  637,  note. 

officer  may  serve  in  his  own  favor,  629,  note. 

proof  of  justification  of  trespass  to  personal  property  under,  625,  626. 
PROPERTY, 

how  far  use  of,  justifiable,  10,  note. 

defense  of,  will  justify  a  battery,  135  et  s;q. 
PROVOCATION, 

words  or  acts  of,  may  have  elFect  of  breach  of  the  peace,  2. 
PUBLIC  AMUSEMENT, 

license  to  attend,  may  be  revoked,  IGO,  161. 
PUBLIC  OFFENSE, 

damages  after  conviction  for,  257. 
PUNISHMENT.     See  Corporal  Punishment. 
PUPIL, 

right  of  teacher  to  chastise,  182  et  seq. 

supervision  of  teacher  over,  185. 

chastisement  of,  by  teacher,  for  acts  done  at  home,  185,  186. 
'         evidence  of  excessive  punishment  of,  230,  note. 

RAILROAD  COMPANY, 

locating  road  does  not  constitute  trespass,  34,  note. 

liable  for  conduct  of  employees,  43,  44,  note,  162, 163, 165, 166. 

when  not  liable  for  acts  of  servants,  163, 164. 

right  to  enforce  regulations,  166,  167. 

contract  implied  by  ticket,  167. 

right  to  eject  party  from  car,  167, 168, 169. 

when  party  may  resist  expulsion  from  train,  170. 

effect  of  special  condition  on  ticket,  170  etseq. 

party  bound  to  surrender  ticket  when  required,  174. 

discrimination  in  fare  proper,  175, 176. 

duty  to  keep  office  open  until  departure  of  train,  176. 

right  of  access  to  depot  of,  177  et  seq. 

liability  of  president  for  acts  of  agent,  179, 180. 
RAPE, 

action  for  in  New  York,  183. 
REAL  ESTATE, 

inquiry  where  wrongful  acts  are  done  upon,  45,  46. 

general  rule  as  to  liability  of  owner  of,  46, 47,  48. 


INDEX.  689 

REBELLION, 

is  no  excuse  that  act  was  done  under  law  of  State  engaged  in,  25,  note. 
RECEIPT, 

genuineness  of,  need  not  be  investigated  by  officer,  440. 

illegal  tax  not  waived  by,  498,  note. 
RECEIPTOR, 

of  property  attached  may  maintain  trespass,  519. 
RECORD, 

of  conviction  of  assault  and  battery,  when  evidence,  224,  233. 

determining  question  of  possession,  227. 

proof  of  time  must  correspond  with,  617. 
RECOVERY, 

when  a  bar  to  an  action,  62  and  62,  63,  note.,  74,  75. 

in  suit  brought  before  removal  of  property,  not  a  bar,  598. 

eflfect  as  a  bar  in  replevin,  598,  599,  600. 

not  barred  by  agreement  of,  one  of  two  joint  owners,  562,  563,  note. 

not  prevented  by  settlement  with  one  of  two  partners,  566,  note. 
RELATIVE  RIGHTS, 

injuries  to,  included  in  trespass,  1. 
RELEASE, 

of  one  of  the  cotrespassers,  72,  note^  73, 74, 100. 

upon  payment  of  part  of  demand,  74,  note. 

where  the  person  released  was  not  liable,  74,  note. 
RELIGIOUS  MEETING, 

person  disturbing  may  be  removed,  158, 159,  268. 
REMEDY, 

upon  judgment  when  lost,  74,  75. 

given  by  statute,  when  party  confined  to,  75. 

for  non-joinder  and  misjoinder  of  parties  plaintiff,  79,  80. 
REPLEVIN, 

liability  of  officer  in  executing  writ  of,  436,  437,  438. 

efiect  of  recovery  in,  as  a  bar,  598,  599, 600. 

plea  of  justification  in,  must  allege  the  giving  of  a  bond,  610. 
REPLICATION, 

abuse  of  authority  must  be  set  forth  in,  85. 

what  it  should  contain,  87,  88,  612,  613. 

when  acts  may  be  replied  to  separately,  87,  88. 

when  double,  89. 

when  required  to  be  special  in  assault  and  battery,  216. 

when  deemed  bad  in  assault  and  battery,  217,  218, 

to  plea  in  false  imprisonment  alleging  breach  of  the  peace,  337. 
to  plea  in  false  imprisonment  justifying  under  process,  337  et  seq. 
tender  and  refusal  of  bail,  339,  note. 

in  action  for  taking  goods,  612,613. 

when  excess  must  be  shown  in,  613,  ' 

defect  in,  when  cured  by  verdict,  613,  614. 
in  action  for  goods,  when  required  to  be  special,  613,  note 
REPLY.     See  Replication. 

Vol.  I.— 44  .    ' 


690  INDEX. 

RESTITUTION, 

sentence  of,  evidence  of  illegal  seizure,  615. 
RETURN, 

must  set  forth  officer's  doings,  317,  318,  336. 

how  far  evidence  in  officer's  favor,  319. 

officer  not  liable  for  omission  or  mistake  in,  475,  note. 

what  was  done  under  warrant  to  be  proved  by,  627,  628. 

is  not  evidence  to  excuse  non-performance,  637. 

when  to  be  objected  to  by  plea  in  abatement,  627,  note. 
*  cannot  be  contradicted,  628. 

evidence  that  attaching  officer  did  not  remove  property  does  not  con- 
tradict, 629,  630. 

not  evidence  for  officer  when  not  directed  by  statute,  630. 
RIGHT  TO  BEGIN.     See  Tkial. 
RIGHT  OF  WAY.     5ee  Way. 
ROCKS, 

injury  caused  by  blasting,  35. 

SABBATH.     See  Sunday. 

sale. 

of  goods  while  mingled  with  those  of  another,  365,  366. 

of  goods  by  one  having  the  mere  possession,  367. 

of  goods  by  sheriff,  mere  purchaser  at,  not  liable,  399. 

causing  wrongful,  by  indemnifying  officer,  400,401. 

goods  may  be  retaken  by  seller  upon  forfeiture  of  condition,  403. 

infant  upon  rescinding,  may  retake  goods,  405. 

goods  sold  upon  credit  cannot  be  retaken,  405. 

purchaser  at,  no  right  to  take  property  against  command  of  officer,  443, 

note. 
property  bought  at,  may  be  left  with  defendant,  445. 
of  goods  of  tenants  in  common  under  execution,  459,  460. 

of  partnership  property,  460,461. 

of  mortgaged  goods,  461,462. 

officer  must  give  notice  of  time  and  place  of,  465,  466,  467. 

officer  not  liable  for  improper  postponement  of,  by  request  of  debtor, 
467,468. 

when  made  contrary  to  the  statute,  is  void,  466,  note,  468,  note. 

made  after  sunset  is  void,  467,  note. 

insufficient  notice  of,  not  cured  by  adjournment,  468,  iwte. 

immediate,  of  distress,  not  permitted,  504. 

effect  of  collector  of  taxes  purchasing  at,  505. 

of  subsequently  acquired  property,  vendee  of  cannot  maintain  action, 
542,  note. 

conditional,  action  in  case  of,  554,  555. 

of  entire  chattel  by  tenant  in  common,  562. 

hona  fide  purchaser  not  liable  to  action,  567,  568. 

vendee  must  show  rightful  possession,  568,  569,  570. 

in  maiket  overt,  effect  of,  at  common  law,  568,  note. 

fraudulent,  right  of  owner  of  goods  to  them  in  case  of,  570. 

when  void  as  to  creditors,  571  et  seq. 


INDEX.  691 

SALE — continued. 

duty  of  buyer  to  give  notice  of,  577,  578. 

when  vendee  may  employ  vendor  to  make,  579. 

question  as  to  v^hether  or  not  it  is  fraudulent,  is  for  the  jury,  620. 

fraudulent,  eflfect  of  proof  of,  621. 

fraud  in,  as  against  attaching  creditor,  626,  note. 
SATISFACTION.     /See  Recovery  ;  Settlement. 
SCHOLAR.     See  Pupil. 
SCHOOL  DISTRICT, 

illegal  collection  of  tax  by  trustees  of,  57. 

not  embraced  in  statute  of  Massachusetts  exempting  assessors,  495,  496. 

trustees  of,  liable  in  Rhode  Island,  496. 

limits  of,  how  defined  by  towns  in  Massachusetts,  496,  note. 

liability  and  duty  of  trustees  of,  in  New  York,  497,  498. 

insufficient  description  of,  503,  note. 
SCHOOL  HOUSE, 

liability  of  minors  for  entering  when  forbidden,  41,  note. 
SCHOOLMASTER.     See  Teacher. 
SCHOOL  MEETING, 

acts  of,  not  made  void  by  insufficient  description  of  school  district,  502, 
note. 
SCHOONER, 

running  into  and  sinking,  35. 
SECURITY, 

eflfect  of  exchange  of  goods  when  deposited  as,  523,  524. 

assignment  as,  may  be  otherwise  good,  though  void  as  to  creditors,  527, 
528. 
SEDUCTION, 

of  daughter,  action  for,  180,  181,  183. 

remedy  for,  at  common  law,  181. 

omission  in  declaration  for,  cured  by  verdict,  183,  note. 
SELECTMEN, 

liability  for  illegal  tax  in  Connecticut  and  New  Hampshire,  496.  497. 
SELF-DEFENSE, 

excuses  breaches  of  the  peace  and  homicide,  128,  130,  143. 

must  not  exceed  prevention,  129,  130,  131. 

when  injury  of  bystander  justifiable,  131,  132. 

right  to  protect  others,  133. 
SERVANT.     See  Master  and  Servant. 
SETTLEMENT, 

of  claim  for  damages,  68  et  seq. 

with  some  of  several,  71,  72. 

where  there  are  two  actions,  69,  70. 

rule  as  to  costs,  70,  71,  note. 

by  one  of  several  tenants  in  common,  eflfect  of,  565,  566,  5G7. 

with  one  of  two  partners,  566,  note. 
SEXTON, 

right  to  eject  undertaker,  160,  nota. 


692  INDEX. 

SHERIFF, 

liable  for  torts  of  his  deputy,  51,  489,  490,  491. 

election  of  party  to  sue,  51. 

relation  to  deputy,  52,  note. 

mere  purchaser  at  sale  of  goods  by,  not  liable,  399. 

personal  property  vests  in,  by  execution,  443. 

liable  for  nonfeasance  of  deputy,  476,  note. 

ground  of  liability  of,  for  acts  of  deputy,  491. 

when  jointly  liable  with  deputy,  491, 492. 

when  dej)uty  may  maintain  action  against,  490,  note. 

not  liable  in  California  for  act  of  his  deputy,  491,  note. 

may  prove  judgment  in  favor  of  his  deputy,  491,  note. 

action  how  brought  against  for  wrong  of  deputy,  491,  493,  note. 

liable  for  seizing  goods  in  possession  of  consignee,  548,  549. 

return  of,  evidence  of  official  acts,  627. 

damages  in  action  against,  for  seizing  goods  in  transit,  641,  note. 
SHOPKEEPER, 

intrusted  with  goods,  may  maintain  action  for  their  injury,  554. 
SILENCE, 

may  be  tantamount  to  admission,  233. 
SPECIAL  OFFICER, 

power  and  duty  of,  487,  488. 
STATE, 

action  may  be  brought  by,  80,  note. 

laws  of,  how  proved,  92,  93. 
STATUTE, 

party  violating,  not  entitled  to  redress,  10. 

of  New  York,  as  to  right  of  action  in  case  of  felony,  37. 

of  New  York,  as  to  husband's  liability,  40,  note. 

of  New  York  and  Vermont  as  to  right  of   executor  to  bring  action,  54, 
note. 

liability  under  authority  derived  from,  55,  et  seq. 

of  Wisconsin,  as  to  action  by  executor,  55,  note. 

jurisdiction  prohibited  by,  cannot  be  given  by  consent,  56. 

of  New  York,  disqualifies  justice  when  an  innkeeper,  58,  ?iote. 

when  party  confined  to  remedy  given  by,  75. 

of  Vermont,  relative  to  plea  offender,  81,  7iote. 

of  New  Hampshire,  as  to  costs  in  actions  of  review,  109,  note. 

of  Maine,  defining  assault  and  battery,  121,  note. 

of  New  York,  relative  to  action  for  rape,  182. 

of  New  York,  as  to  actions  between  husband  and  wife,  189,  190,  jwte. 

of  New  York,  relative  to  injuries  caused  by  driver,  190,  note. 

when  extraterritorial,  195,  196. 

of  New  York,  relative  to  action  by  married  woman,  201,  note. 

of  New  Hampshire,  relative  to  lumber  floated  upon  land,  381,  382,  note. 

of  Vermont,  exempting  wife's  property  from  attachment,  451,  452,  note. 

sale  made  contrary  to,  is  void,  466,  468,  note. 

of  Massachusetts,  relative  to  impounding  beasts,  466,  7iote. 

of  Maine,  permitting  attachment  of  proceeds  of  sale,  472,  note. 


INDEX.  693 

ST  ATVT^E— continued. 

of  New  York,  as  to  custody  of  stolen  property,  484,  485,  note. 
of  Massachusetts,  as  to  liability  of  towns  for  illegal  taxes,  495. 
giving  to  towns  in  Massachusetts  power  to  define  school  districts,  496, 
note. 

of  New  York,  as  to  actions  by  executors  and  administrators,  538,  534, 
note. 

of  New  York,  relative  to  chattels  pledged,  553,  note. 

of  Connecticut,  as  to  joinder  of  trespass  and  trover,  589,  590,  note. 
STATUTE  OF  LIMITATIONS.     See  Limitations,  Statute  of. 
STEAMBOAT, 

injury  by  discharge  of  gun  on,  34,  35. 
STOCK, 

rolling,  of  railroad  company  may  be  attached,  413,  414. 
SUNDAY, 

definition  and  origin  of,  294,  295,  note. 
SUPERVISOR, 

of  taxes  in  Michigan  protected  by  tax-roll,  504,  -not^. 
SUSPICION, 

probable  cause  of,  in  actions  for  false  imprisonment,  346,  347,  348. 

TAX  COLLECTOR.     See  Collector;   Taxes. 

TAXES, 

liability  of  mayor  for  wrongful  collection  of,  57. 

illegal  collection  by  trustees  of  school  district,  57. 

supervisor  of,  in  Michigan,  protected  by  tax-roll,  304,  note. 

collector  purchasing  at  his  own  sale,  505. 

liability  of  collector  where  goods  sold  are  bought  by  owner,  505,  506. 

collector  in  New  Hampshire  may  arrest  without  searching  for  property, 

305,  7wte. 
declaration  for  arrest  on  account  of,  329. 
liability  of  assessors  in  Massachusetts,  492  et  seq. 
protection  accorded  to  assessors  in  New  York,  495. 
liability  of  towns  in  Massachusetts  for  illegal  assessment  of,  495. 
illegal,  liability  of  selectmen  for,  in  Connecticut  and  New  Hampshire, 

496,  497. 

liability  of  trustees  of  school  district  in  the  collection  of,  in  New  York, 

497,  498. 

when  illegal,  application  need  not  be  made  to  abate,  498,  note. 
illegality  of,  not  waived  by  giving  receipt,  498,  note. 
liability  of  collector  of,  498  et  seq. 

property  not  to  be  sold  for,  until  after  a  reasonable  time,  504. 
sale  for,  may  be  private,  or  at  auction,  504. 
TEACHER, 

chastisement  of  pupil  by,  when  lawful,  182,  183,  184. 
supervision  of,  over  scholars,  185. 

right  to  chastise  pupil  for  acts  done  at  home,  185,  186. 
of  music,  cannot  lawfully  beat  chorister,  182,  note. 
evidence  of  excessive  punishment  by,  230,  note. 


694  INDEX. 

TENANTS  IN  COMMON, 

assault  and  battery  by,  151,  note. 

attachment  of  goods  of,  458. 

sale  of  goods  of,  under  execution,  459,  460. 

right  to  maintain  action  against  cotenant,  561,  563. 

one  may  sell  his  interest,  563. 

effect  of  sale  of  entire  cliattel,  by  one,  562. 

joint  recovery  not  barred  by  agreement  of  one,  562,  583,  note. 

when  each  may  appropriate  his  share  of  the  property,  563. 

when  one  may  entirely  change  property,  563,  564. 

implied  engagement  to  divide  property,  563,  note. 

cannot  lawfully  diminish  value  of  jiroperty,  564,  565. 

must  join  in  action,  565. 

effect  of  settlement  by  one,  565,  566,  567. 
TENDER, 

plea  of,  in  VeiTQont,  81,  note. 

reply  as  to,  87. 

of  bail,  when  it  should  be  replied  to  specially,  339,  note. 

of  goods,  will  not  excuse  wrongful  taking,  406. 
THEATER.     See  Public  Amusement. 
TICKET, 

contract  implied  by,  167. 

effect  of  special  condition,  170  et  seq. 

party  bound  to  surrender,  174. 
TIMBER, 

inducing  another  to  cut  and  remove,  24,  note. 

what  not  deemed  a  participation  in  the  cutting  of,  63,  64,  note. 

correct  instruction  as  to  liability  for  cutting,  65,  66. 


TIME, 


TOOLS, 


TORT, 


allegation  of,  in  declaration,  77,  78. 
need  not  in  general  be  proved,  91,  92,  617. 
rule  of  common  law  as  to  allegation  of,  92,  iiote. 
how  laid  in  action  for  assault  and  battery,  205. 
reasonable,  a  question  of  law,  483,  note. 
sale  for  taxes  not  to  be  until  after  a  reasonable,  504. 
proof  of,  must  correspond  with  record,  617. 

allegation  of,  by  which  recovery  may  be  had  for  successive  trespasses, 
593. 

were  exempt  from  seizure  by  ancient  law  of  distress,  411. 

what  deemed,  411. 

what  not  regarded  as  implements.  412,  413. 

when  claim  for,  assignable,  37. 

assignment  of  claim  for,  by  wife,  37,  note. 

of  wife,  liability  of  husband  for,  38,  39. 

of  wife,  arrest  for,  39,  7iote. 

of  servant,  liability  of  master  for,  42  et  seq. 

action  against  innkeeper  or  common  carrier  founded  in,  382,  note. 


INDEX.  695 

TOWNS, 

liability  of,  in  Massachusetts,  for  illegal  assessment,  495. 

liability  of  selectmen  for  illegal  tax  in  Connecticut  and  New  Hampshire, 
496,  497. 

limits  of  school  districts,  how  defined  by  in  Massachusetts,  496,  rivtc. 

existence  or  authority  as  a  corporation,  need  not  be  alleged,  610,  611. 
TREES, 

action  for  cutting  on  one's  own  premises,  34. 

liability  of  employer  for  the  cutting  of,  by  employee,  47. 

how  regarded  with  reference  to  fixtures,  373,  note. 
TRESPASS, 

definition,  1. 

includes  injuries  to  relative  rights,  1. 

the  name  of  an  action,  1,  3. 

words  do  not  constitute,  2. 

language  may  qualify,  2. 

distinction  in  actions  of,  abolished  in  Delaware,  2,  note. 

may  be  brought  in  case  of  injury  from  want  of  skill  and  care,  5,  6,  note. 

when  to  be  deemed  involuntary,  7,  note. 

justified  by  authority  in  law,  8. 

judges  and  jurymen  not  liable  to  action  for,  8. 

will  lie  without  proof  of  wrongful  intention,  13  et  seq. 

inciting  or  aiding,  22  et  seq. 
'  commission  of,  by  delegating  authority,  24,  25. 

ratification  and  adoption,  27,  28. 

what  essential  to  maintain  action,  31. 

when  party  has  a  choice  of  remedies,  32. 

distinction  between,  and  trespass  on  the  case,  31,  32,  note. 

when  indictable,  33,  n^te. 

when  consent  will  not  take  away  remedy,  33,  note. 

will  lie  in  case  of  negligence,  34,  35. 

for  cutting  down  trees  on  one's  own  premises,  34. 

for  injury  to  canal-boat,  34. 

for  damaging  a  fishing  net,  34. 

for  injury  by  discharge  of  gun  on  steamboat,  34,  35. 

for  running  into  and  sinking  schooner,  35. 

for  injury  caused  by  blasting  rocks,  35. 

not  caused  by  locating  railroad,  34,  note. 

cause  of  action  in,  not  a  debt,  34,  note. 

for  injury  to  incorporeal  right,  35,  36,  ?iote. 

is  proper  remedy  for  false  imprisonment,  328,  note. 

for  injury  which  party  has  no  right  to  do  himself,  36. 

not  taken  away  by  commission  of  act  with  felonious  intent,  36,  37. 

minors  may  be  sued  for,  41,  note. 

entry  of  school  house  by  minors  when  forbidden,  constitutes,  41,  n^ote. 

liability  of  sheriff  for  wrongful  acts  of  his  deputy,  51. 

action  of,  against  corporations,  52,  53. 

liability  of  partners,  54. 

action  of,  by  executors  and  administrators,  54,  note. 


696  INDEX. 

TB.'ESVAQS-coniinued. 

by  the  joint  hiring  of  carnage  and  horses,  66,  note. 

by  receiving  a  trespasser,  66,  note. 

action  of,  cannot  be  maintained  against  cotrespasser,  67,  note. 

damages  for  involuntary,  103. 

may  be  maintained  for  reckless  driving,  190,  191. 

will  lie  against  tather  for  injury  of  team  by  son,  191,  192,  nofe. 

interference  with  goods  for  an  instant  is,  381. 

need  not  have  been  a  forcible  taking  of  goods  to  constitute,  382,  383. 

on  personal  property  defined  in  North  Carolina,  383,  note. 

refusal  to  give  uji  goods  lawfully  acquired  is  not,  382,  note. 

taking  away  property  levied  on,  v.hen  enough  is  left  to  satisfy  execu- 
tion is  not,  384,  note. 

may  be  committed  to  goods  without  wrongful  intention,  384. 

the  taking  of  goods  must  have  been  without  permission,  384,  385. 

remedy  against  second  taker,   385,  386. 

interfering  with  goods  after  revocation  of  license,   368. 

no  defense  that  goods  were  taken  with  approval  of  wife,  388,  note. 

directing  illegal  seizure  or  sale  of  goods,  390  et  seg. 

levy  ujjon  property  of  corporation  by  wrong  name,  is  not,  439,  note. 

ab  initio,  what  essential  to  constitute,  476  et  seg. 

seizure  as  prize,  is  not,  485,  486. 

possessor  of  personal  property  may  maintain,  507. 

will  not  lie  when  right  of  property  is  in  another,  509,  510. 

owner  cannot  bring,  when  goods  are  in  custody  of  law,  510. 

general  property  in  goods  sufficient  to  maintain,  512. 

rule  as  to  the  right  that  is  essential  to  maintain,  513  et  seg. 

receiptor  of  property  attached,  may  maintain,  519. 

may  be  maintained  by  purchaser  of  goods  against  seller,  without  deliv- 
ery, 525. 

where  goods  are  taken  from  officer,  538,  529,  530. 

actions  of,  in  New  York,  by  executors  and  administrators,  533,  534,  note. 

will  not  lie  against  bailee  unless  be  has  destroyed  property,  587,  note. 

will  not  lie  against  master  for  injury  of  property  by  servant,  when,  587, 
note. 

when  declaration  will  entitle  to  recovery  for  successive,  593. 

levy,  taking  away,  and  sale  constitute  single,  593,  note. 

may  be  maintained  for  liquor  sold  without  license,  596,  597,  598. 
See  Action. 
TRESPASSER, 

may  maintain  a,ction  for  wanton  injury,  145,  146. 

forcible  removal  of,  from  land,  149,  150. 

person  entering  an  inn  to  do  unlawful  act  is,  154. 

may  become,  by  refusing  to  leave  place  of  public  amusement,  160,  161. 


TRIAL. 


right  to  open  and  close,  90. 

proceeding  for  one  of  two  injuries  not  a  bar  to  second  action,  602, 

must  be  where  goods  were  taken,  614,  note. 

objections  to  evidence  to  be  made  at,  635. 


INDEX.  697 

TROVER, 

conflict  of  authority  as  to  effect  of  judgment  in,  600,  601. 
TRUSTEE, 

illegal  collection  of  tax  by,  57. 
liability  in  Rhode  Island,  496. 
Uability  and  duty  in  New  York,  497,  498. 


UNDERTAKER, 

right  of  sexton  to  eject  from  church,  160,  note. 
UNITED  STATES  COLLECTOR, 

sentence  of  restitution  proof  of  illegal  seizure  by,  615. 
UNITED  STATES  OFFICER, 

acts  of,  when  justifiable,  9. 


VARIANCE, 

waiver  of,  101. 
VENDOR  AND  VENDEE, 

when  deemed  in  joint  possession  of  personalty,  515,  note. 

purchaser  may  maintain  action  against  seller  without  delivery,  535. 

when  goods  sold  deemed  in  constructive  possession  of  vendee,  536,  537. 

action  in"  case  of  conditional  sale,  554,  555. 

resumption  of  possession  by  vendor,  556. 

bonajide  purchaser  protected,  567,  568. 

vendee  must  show  rightful  possession,  568,  569,  570. 

presumption  of  fraud  from  continued  possession  of  vendor,  574,  575. 

duty  of  vendee  to  give  notice  of,  577,  578. 

when  vendee  may  lend  or  employ  vendor  to  sell,  579. 

sale  void  as  to  remedy  and  valid  as  to  possession  of  vendee,  583,  584. 
VENUE, 

changed  to  place  of  taking  goods,  614,  note. 
VERDICT, 

may  be  general,  110. 

must  embrace  issue,  110,  111,  note. 

when  the  action  is  against  several,  110,  111. 

when  plaintiff  entitled  to,  although  the  declaration  is  bad,  111,  note. 

when  judge  may  direct  entry  of,  during  trial,  113. 

jury  may  be  asked  ground  of,  113. 

jury  may  change  their  mind  as  to,  118. 

polling  jury,  113,  113. 

amendment  after,  113, 114. 

new  trial  when  verdict  is  contrary  to,  117. 

in  action  for  assault  and  battery,  361,  263,  363. 
VESSEL, 

corporal  punishment  by  master  of,  187. 

libel  for  assault  and  battery  of  child,  187,  note. 

master  of,  may  maintain  action  for  injury  of  property,  554. 
Vol.  L-45 


698  INDEX. 

WAIVER, 

by  not  demurring  to  declaration,  76,  note^  78.  note 

of  objection  on  account  of  variance,  101. 

of  irrelevant  testimony,  101. 

of  right  of  action,  326,  327. 

by  mortgagee  of  claim  under  mortgage,  542,  543,  544. 

is  question  of  fact,  585,  note. 
WARRANT, 

officer  may  be  resisted  if  he  do  do  not  show,  192. 

party  liable  when  issued  upon  insufficient  affidavit,  272,  273. 

officer  arresting  innocent  party  without,  292. 

may  be  directed  to  private  individual,  297. 

must  contain  a  command,  297. 

dii-ection  material,  297,  298. 

name  of  party  must  be  correctly  stated,  298,  299. 

of  commitment,  must  show  grounds,  300,  301. 

misnomer  of  town  in  which  jail  is  situate  will  not  vitiate,  300,  note. 

informality  in,  will  not  make  magistrate  or  officer  liable,  300,  note. 

duty  of  officer  to  communicate  substance  of,  301,  302. 

to  justify  officer,  need  not  be  founded  on  affidavit,  C04,  note. 

signature  to,  prima  facie  evidence  against  magistrate,  341. 

how  far  collector  of  taxes  protected  by,  502,  503,  504. 

the  best  evidence  of  what  was  done  by  virtue  of  it,  615. 

what  was  done  imder  it  to  be  proved  by  return,  627. 
WAY, 

right  of,  may  be  proved  to  show  character  of  act,  341,  note. 
WHAIJFmGER, 

not  responsible  for  goods  taken  from  him  by  process,  386,  387. 
WIFE.     8ee  Htjsbasd  and  Wife. 
WILD  ANIMALS, 

how  far  under  the  protection  of  the  law,  355,  356,  357. 

bees  deemed,  357. 

manucapture  not  necessaiy  to  property  in,  356. 

to  acquire  title  to  fish,  they  must  be  under  control,  356. 

when  property  in,  arises  ratione  soli,  357.  358, 7wte. 
WINE  PLANTS, 

when  deemed  personal  property,  373,  374,  note. 
WITNESS, 

opinion  of,  not  evidence,  91. 

when  defendant  may  be  examined  as,  94,  95,  96. 

examination  of  party  as,  in  New  York,  94,  95,  96,  note. 

when  defendant  not  competent  as,  97,  note. 

the  calling  of  further,  in  discretion  of  court,  100. 

new  trial  will  not  be  granted  to  enable  party  to  be,  116,  note 

refusing  to  be  sworn  before  grand  jury,  293,  note. 
WORDS, 

do  not  constitute  trespass,  2. 

when  proof  of,  proper,  2. 

in  case  of  threatened  assault,  124. 


INDEX.  699 

WORDS— co7iHnued. 

characterizing  coudnct  as  to  malice,  239. 

admissible  in  mitigation  of  damages  for  assault,  236,  237,  238. 
WOUNDED  FEELING, 

damages  for,  in  assault  and  battery,  249,  250,  251. 

party  not  entitled  to  recover  for  mental  suflfering  of  wife,  251,  note. 
WRIT, 

of  replevin,  liability  of  officer  in  executing,  436,  437,  438. 

original,  officer  having  execution  need  not  inquire  into  service  of.  438. 
439,  440. 
WRIT  OF  ERROR.     &<?  Error. 
WRONG-DOER, 

indemnity  of,  28,  29,  30,  67,  note.     See  Jolnt  Wrong-doers. 


END  OF  vol.  I. 


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